Cornell v. Donovan

14 Daly 295, 14 N.Y. St. Rep. 687

Opinion

Van Hoesen, J. —

A judgment is a contract of the highest class. An action upon a judgment is an action upon a contract (Taylor v. Root, 4 Abb. App. Dec. 382). The judgment -in the action of Donovan against Robert G. Cornell was, I think, available as a counterclaim in this action. It is said that a set-off cannot be valid if it could not be made the ground of an action. That is not the law of this state. The question was exhaustively considered in the case of Taylor v. Mayor &c. (82 N. Y. 10), and the Court of Appeals held that a claim might be a valid seLoff, though for some reason no action upon it could at the time be maintained. A distinction was drawn between the cause of action and the remedy by action, and it was held that though the remedy might temporarily be suspended, so that no action could be maintained, if a good cause of action existed, it might be used as a set-off. There is no doubt that Donovan had a good cause of action against Robert G. Cornell, as he had a judgment against him, nor is there any doubt that this remedy was suspended until leave to sue upon the judgment could be obtained from the court. This left Donovan in a position to plead the judgment as a set-off.

Robert G. Cornell’s right to recover upon the undertaking that was given in order to procure the order of arrest is clear. His attorney had no right of action upon it, nor could the attorney by assignment confer any right of action to Ms transferee. It matters not that a court had adjudged that the law gave to the attorney a right to sue upon the undertaldng for the purpose of recovering as his own property the costs that were awarded to Robert G. Cornell when the order of arrest was set aside. That decision was erroneous, and Donovan’s remedy was, not to plead the judgment that had been rendered in favor of the attorney’s assignee as a bar to this action, but to appeal from that judgment. The rights of Robert could not be affected by any proceedings that were taken, without Ms authority or consent, by Ms attorney, who was acting on Ms own behalf, and asserting a claim that was in hostility to the claim that Robert was prosecuting M tMs action.

Whether the judgment in favor of the attorney’s assignee was erroneous or not, it was not evidence against Robert, who had no part in the litigaron between Donovan and his adversary in the other action. It was error to deduct from the plaintiff’s claim the amount that had been awarded against Donovan in the action brought by the attorney’s assignee.

The judgment must be reversed and a new trial ordered, with costs to abide the event.

Labbemoke, Ch. J.. and J. F. Daly, J., concurred.

Judgment reversed and new trial ordered, with costs to abide the event.