Cooke v. Smith

7 Hill & Den. 186

• Court: New York Supreme Court
• Decided: April 15, 1845
• Status: Published

Opinion

By the Court,

Bronson, Ch. J.

When the judgments to be set off are in different courts, the moving party should go into that court where the judgment against himself was recovered. That court alone has the direct power to control the proceedings on the judgment. The other court could only enforce its order for a set-off by attachment. (Brewerton v. Harris, 1 John. R. 144; and see 13 Wend. 652; 1 Paige, 623, 4; 1 Hill, 366.) Should we order a set-off the plaintiff might still be under the necessity of invoking the aid. of the court of chancery to control the proceedings on the decree. The motion must be denied, but without prejudice to a motion in the court of chancery.

Ordéred accordingly.