Brooks v. Hanford

15 Abb. Pr. 342

Opinion

By the Court.

*—Brown, J.

1. This is an appeal from an order made by the City Court of Brooklyn in this action. It appears by the papers that one Samuel Hanford recovered a judgment, before a justice of the peace, against the above-named plaintiff, Daniel Brooks, for the sum of $90.28, on the 25th of June, 1858, which was docketed in the office of the clerk of the county of Kings, before the trial of the present action. On the 10th of September, 1858, the same was duly assigned to the defendant Hanford. On the 15th day of September, the present action, which was for an assault and battery upon the person of the plaintiff . Brooks, was tried in the City Court, Brooklyn, and a verdict therein rendered for the plaintiff for the sum of $25. Judgment was afterwards perfected upon the verdict for the said sum of $25 damages, and $25 costs, in all $50, but the precise day on which it was entered does not appear.

2. On the 16th day of September, 1858, and before the judgment was entered or perfected on the verdict, the same, with any judgment to be entered thereon, was duly assigned to Charles M. Briggs, the attorney for the plaintiff. And, on the 7th of December, 1858, the City Court, upon due notice, and upon the motion of the defendant, William H. Hanford, ordered the judgment entered up in this action to be offset against the judgment obtained in the justice’s court against the plaintiff Brooks, and which had been assigned to the defendant Han-ford. From this order Charles M. Briggs has appealed.

3. The right of action for a personal tort is not assignable. Such rights do not survive to the personal representatives; they die with the person, and of course do not pass by deed of assignment. This is the settled doctrine. (See Zabriskie a. Smith, 13 N. Y., 322.)

4. The rendering of the verdict did not alter the nature of the claim. It liquidated the amount of the damages which the plaintiff was to recover, but the claim remained the same. The verdict was but a stage in the progress of the cause, and there was no debt or claim which would pass by assignment until the judgment was perfected. (Crouch a. Gridley, 6 Hill, 250; Kellogg a. Schuyler, 2 Den., 73.)

5. It follows, that Charles M. Briggs took nothing by the assignment.

6. The moment the judgment was perfected the right of set-off attached. The defendant was then, and had been for several days, the assignee and owner of the judgment against Brooks. Bus right was superior to the attorney’s lien. An attorney’s lien is no bar to a bill filed to obtain a set-off, nor is it a bar Tvhen the question arises on a trial at law. In Nicoll a. Nicoll (16 Wend., 446), decided in the Court of Errors, it is said, “Ho-authority can be produced, where the attorney’s lien was ever recognized, on a trial at law, as barring a set-off, the right to 'which would be otherwise perfect.”

The order appealed from should be affirmed.

Present. Brown, Emott, and Lott, JJ.