Betts v. Garr

1 Hilt. 411

• Court: New York Court of Common Pleas
• Decided: August 15, 1857
• Status: Published

Opinions

Daly, J. —

This motion was denied upon the ground that the court should not allow an execution to issue, where it appeared that the defendant had a judgment against the assignee by whom tbe motion was made, greater in amount than the judgment in this court; but that, if Martin wanted to enforce this judgment, he should be put to his action upon it, in which- action Garr mi^pit avail himself of his equitable set-off; and I still adhere to the opinion that that is the proper disposition to make of such a case. It is unnecessary that Martin should be allowed to issue execution and levy upon the property of Garr, or that Garr should issue execution upon the judgment assigned to him, and levy upon the property of Martin, when, by putting Martin to his action upon the judgment, the rights of the parties could be equitably adjusted.

INGRAHAM, E. J., concurred.