Hayden v. McDermott

9 Abb. Pr. 14

• Court: New York Court of Common Pleas
• Decided: June 15, 1859
• Status: Published

Opinion

Daly, F. J.

The plaintiffs in the first of these cases, Hayden and Alcott, recovered a judgment against the defendant McDermott, in a justice’s court, on the 8th of December, 1858, for $84.85, upon which they issued execution which was returned unsatisfied.

McDermott, the plaintiff in the second case, recovered a judgment against the defendants Hayden and Alcott, in the Marine Court, on the 13th of January, 1850, for $94.64. On the 14th, the day following, he assigned the judgment to John S. Diossy, to whom he was indebted in an amount equal to the judgment, for legal services rendered, and money paid and advanced by Diossy,—Diossy, at the time of the assignment, having knowledge of the existence of the judgment which Hayden and Alcott had recovered against McDermott.

, After the assignment of the second judgment to Diossy, a transcript of it was filed with the county clerk, and on the 15th of May, 1859, an execution was issued in this court, and on the lYth of January, 1859, a transcript of the judgment which Hayden and Alcott recovered against McDermott was filed with the county clerk. Hayden and Alcott now apply to have their judgment set-off against the judgment obtained against them by McDermott, upon their satisfying their judgment, and paying the difference between their judgment and McDermott’s, to McDermott or his assignee.

As respects the right of set-off, both judgments, by filing of the transcript, are to be deemed judgments of this court, and I see nothing to prevent the granting of the motion. Several points were made on the argument, but there is nothing in the affidavits to support them. It does not appear by the affidavits that the judgment in the first case was against McDermott and another, but, on the contrary, that the suit was commenced against two defendants, and that judgment was rendered against McDermott alone. Mor does it appear that any levy was made under Hayden and Alcott’s judgment. If a levy was made sufficient to satisfy the debt upon a former judgment for the same cause of action, the existence of the former judgment should have been set up as a defence against the second suit; but, though suggested upon the points, nothing of the kind appears by the affidavits.

It does not appear that Diossy had any lien upon the judgment in the Marine Court for costs, even if such a lien could be acquired in that court; and if he had, it would not prevail as against the equitable right to set-off cross-judgments. As assignee, he took subject to Hayden and Alcott’s equitable right to set-off their, judgment, and with full knowledge of the existence of that judgment; so that, so far as his interest interposes, he has no equitable right, except to the surplus that may remain after the set-off is allowed.

The motion must be granted upon the payment of the excess, when both judgments will be declared to be satisfied.