Hayes v. Carr

Headnote

Injunction — when an assignee of a judgment for costs will he restrained from enforcing it on the ground that his assignor was insolvent and, largely indebted to the person against whom it was recovered.

Appeal by the plaintiff from an order of the Special Term, vacating, as to the defendant Carr, an order enjoining the enforce

ment of a judgment for costs recovered by the defendant Rabold against the plaintiff, and by Rabold assigned to Carr.

The court at General Term said: “ Catharine E. Rabold, one of the defendants in this action recovered a judgment against the plaintiff for the costs in an action by the plaintiff against her, which she assigned to the defendant Carr, her lawyer in that action, for his services. At the time of that assignment the assignee was indebted to the plaintiff in a large amount for rent. Such being the situation and relation of the parties, the plaintiff commenced this action to obtain a judgment against the defendant Rabold for the amount due from her to the plaintiff for rent, after the deduction therefrom of the judgment against him, and a restraint of the enforcement of the judgment by the defendant Carr, the assignee thereof.

“A preliminary injunction restraining the enforcement of the judgment during the pendency of this action was procured at its commencement, which was vacated on notice, and from the order of vacation we have this appeal. The complaint malees a case for the interposition of the court, and it would be quite inequitable to permit the enforcement of the judgment by the assignee while the insolvent assignor remains indebted to the plaintiff in a large amount of money. The assignee received the assignment subject to all the equities existing between the original parties, and those equities should be adjusted by the judgment of the court before he is permitted to institute any proceedings for the collection of his judgment.

“The order appealed from should be reversed, with ten dollars costs and disbursements.”