Swift v. . Prouty

New York Court of Appeals

Swift v. . Prouty

64 N.Y. 545, 1876 N.Y. LEXIS 104

CourtNew York Court of Appeals

DecidedApril 4, 1876

StatusPublished

Cited by1 cases

This text of 64 N.Y. 545 (Swift v. . Prouty) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Swift v. . Prouty, 64 N.Y. 545, 1876 N.Y. LEXIS 104 (N.Y. 1876).

Pincite

Opinion

Allen, J.

At the time of the assignment of the claim of Swift to Burt it was not in judgment, and therefore not the subject of a set-off against the judgment of Prouty against the assignor upon summary application to the court. The assignee of the Swift claim took it subject only to such equities in favor of Prouty as existed at the time of the assignment; and as there was then no right of set-off, upon motion the application was properly denied. When the judgment was perfected the claim was then, for the first time, the subject of a set-off, and could then only be set off by motion as the property of Smith. But he had parted with his right, and if Prouty had any equities, they could only be enforced by action, and could not be asserted by motion. This was decided in Graves v. Woodbury (4 Hill, 559), and reaffirmed in Spencer v. Barber (5 id., 568); Peckham v. Barcalow (H. & Den., 112), and Gay v. Gay (10 Paige, 369). It may be questionable whether on applications of this character, addressed to the discretion of the court, the order is appeal-able, but without considering that question, it may be affirmed upon the authorities cited.

The order must be affirmed.

All concur.

Order affirmed.

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Allen, J.

At the time of the assignment of the claim of Swift to Burt it was not in judgment, and therefore not the subject of a set-off against the judgment of Prouty against the assignor upon summary application to the court. The assignee of the Swift claim took it subject only to such equities in favor of Prouty as existed at the time of the assignment; and as there was then no right of set-off, upon motion the application was properly denied. When the judgment was perfected the claim was then, for the first time, the subject of a set-off, and could then only be set off by motion as the property of Smith. But he had parted with his right, and if Prouty had any equities, they could only be enforced by action, and could not be asserted by motion. This was decided in Graves v. Woodbury (4 Hill, 559), and reaffirmed in Spencer v. Barber (5 id., 568); Peckham v. Barcalow (H. & Den., 112), and Gay v. Gay (10 Paige, 369). It may be questionable whether on applications of this character, addressed to the discretion of the court, the order is appeal-able, but without considering that question, it may be affirmed upon the authorities cited.

The order must be affirmed.

All concur.

Order affirmed.

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Bluebook (online)

64 N.Y. 545, 1876 N.Y. LEXIS 104, Counsel Stack Legal Research, https://law.counselstack.com/opinion/swift-v-prouty-ny-1876.

Opinion

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