Crocker v. Claughly — 9 N.Y. Super. Ct. 684

Majority

p. 684

Crocker and another v. Claughly.

(November Special Term, 1853,

Before the Chief Justice,)

Headnote

The defendant in an action, will be allowed to set off a judgment in his favor for costs, against a judgment upon a verdict, in favpr of the plaintiffs, when the latter are shown to be insolvent, notwithstanding they had previously assigned the verdict to their attorney.

The plaintiffs, in an action for the recovery of money, only obtained a verdict for $35,.which they immediately assigned to their attorney. Judgment was subsequently entered and perfected, and was, that the plaintiffs should recover the $35, and the defendant his costs, amounting to $65.56. The defendant, upon an affidavit of the facts, and of the insolvency of the plaintiffs, moved that the judgment of the plaintiffs should be satisfied by a set-off of an equal amount of the costs which he had recovered.

The Chief Justice, without passing upon other questions which were raised, held that the insolvency of the plaintiffs was not only a sufficient, but a conclusive reason for granting the motion.

Approved on consultation.