Stillings v. Smith

8 N.Y. St. Rep. 106

• Court: The Superior Court of New York City
• Decided: May 16, 1887
• Status: Published

Opinion

Per Curiam.

Upon the facts as they were made to appear on the motion the order is right and proper. If the appellant could have shown an additional fact which within the authorities cited by him would have been a bar to the motion, he_ should have done so. The order should be affirmed, with ten dollars costs and disbursements, upon the opinion of the learned judge at special term.

The following is the opinion of Ingraham, J., at special term:

The plaintiff in the case of Taylor v. Smith, No. 2, having made a general assignment for the benefit of creditors, that judgment became vested in and owned by the assignee. The causes of action in the actions in which judgment was entered in favor of the defendant against the plaintiff having been by the general assignment transferred to the assignee after the commencement of such actions, the assignee under section 3247 of the Code would be liable for the costs in the like case and to the same effect as if he-was the plaintiff, and the court has power, by order, to direct the person so hable to pay them. The assignee, therefore, being liable for the judgment entered in favor of the defendant against the plaintiff, and being the owner of the judgment entered in favor of the plaintiff against the defendant, a proper case is presented for a set off. It does not appear that there is not sufficient' funds in the hands of the assignee to satisfy any lien that the attorney for the plaintiff has upon the action, No. 2. Motion should therefore be granted, without costs.