In re the Judicial Settlement of the Accounts of Kloster

New York Supreme Court

In re the Judicial Settlement of the Accounts of Kloster

47 N.Y. Sup. Ct. 374

DecidedMay 15, 1886

StatusPublished

This text of 47 N.Y. Sup. Ct. 374 (In re the Judicial Settlement of the Accounts of Kloster) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In re the Judicial Settlement of the Accounts of Kloster, 47 N.Y. Sup. Ct. 374 (N.Y. Super. Ct. 1886).

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Opinion

Dykman, J.:

The executors of Joseph Masson appeal from a portion of the decree of the surrogate of Kings county settling their accounts. [375]*375The will gave F. J. Moissen, the respondent, a legacy of $300, Among tbe assets of tbe estate tbe executors found a note made by Moissen to tbe testator for $200.

In an action brought by Moissen against tbe executors for services to tbe deceased, they set up tbe note as a counter-claim and bad a judgment on it amounting, witb costs, to $346.42. Moissen has appealed from the judgment and given security. When the executors accounted they sought to set-off their judgment against the legacy, but the surrogate refused and from that portion of tbe decree tbe executors ’appealed.

Tbe cases cited in Hardt v. Schulting (24 Hun, 345) are conclusive against the executors’ right to set-off their judgment against Moissen’s legacy, and fully support tbe determination of tbe surrogate that a judgment so secured on appeal has not sufficient vitality to become the subject of a set-off. In Terry v. Roberts (15 How. Pr., 65), decided at Special Term in 1857, this principle was affirmed, and to obviate its disadvantage a stay was granted till tbe appeal should be determined. A note to the case states it was affirmed at General Term. In Pierce v. Tuttle (51 How. Pr., 193) tbe plaintiff bad judgment against defendant, and it bad been affirmed in tbe Court of Appeals. In another action between tbe same parties defendant recovered judgment from which an appeal was pending when execution was issued and a motion made to set-off •one judgment against tbe other. Tbe motion was granted at Special Term but tbe General Term reversed tbe order and held that tbe appeal suspended tbe right to set-off one judgment against tbe other. Ve see no distinction between that case and this,

Tbe order appealed from should be affirmed, witb ten dollars •costs and disbursements.

BarNard, P. J., concurred.

Parts of decree of surrogate’s decree appealed from affirmed., •with costs.

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Dykman, J.:

The executors of Joseph Masson appeal from a portion of the decree of the surrogate of Kings county settling their accounts. [375]*375The will gave F. J. Moissen, the respondent, a legacy of $300, Among tbe assets of tbe estate tbe executors found a note made by Moissen to tbe testator for $200.

In an action brought by Moissen against tbe executors for services to tbe deceased, they set up tbe note as a counter-claim and bad a judgment on it amounting, witb costs, to $346.42. Moissen has appealed from the judgment and given security. When the executors accounted they sought to set-off their judgment against the legacy, but the surrogate refused and from that portion of tbe decree tbe executors ’appealed.

Tbe cases cited in Hardt v. Schulting (24 Hun, 345) are conclusive against the executors’ right to set-off their judgment against Moissen’s legacy, and fully support tbe determination of tbe surrogate that a judgment so secured on appeal has not sufficient vitality to become the subject of a set-off. In Terry v. Roberts (15 How. Pr., 65), decided at Special Term in 1857, this principle was affirmed, and to obviate its disadvantage a stay was granted till tbe appeal should be determined. A note to the case states it was affirmed at General Term. In Pierce v. Tuttle (51 How. Pr., 193) tbe plaintiff bad judgment against defendant, and it bad been affirmed in tbe Court of Appeals. In another action between tbe same parties defendant recovered judgment from which an appeal was pending when execution was issued and a motion made to set-off •one judgment against tbe other. Tbe motion was granted at Special Term but tbe General Term reversed tbe order and held that tbe appeal suspended tbe right to set-off one judgment against tbe other. Ve see no distinction between that case and this,

Tbe order appealed from should be affirmed, witb ten dollars •costs and disbursements.

BarNard, P. J., concurred.

Parts of decree of surrogate’s decree appealed from affirmed., •with costs.

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47 N.Y. Sup. Ct. 374, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-judicial-settlement-of-the-accounts-of-kloster-nysupct-1886.

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