Van Pelt v. Boyer

8 How. Pr. 319

• Court: New York Supreme Court
• Decided: September 15, 1853
• Status: Published

Opinion

S. B. Strong, Justice.

The assignment was made, so- far as appears from the papers, for the purpose of satisfying the-claims of the defendant’s attorney and counsel for their services- and disbursements, and not merely or principally tb> evade the right which the plaintiff' would,, but for that, have had when the defendant’s judgment was perfected, to have the judgment which was favorable set off against the- one which was adverse to him. Had the transaction been solely or principally with a view of defeating the attainment of such right of set off, it would have been so far tainted with fraud that it should not,, and could not have prevailed.

As the case stands, the only question is, whether there was at the time of the assignment, an equity in favor of the plaintiff, which entitles him to this set off By an equity I mean such as could have -been enforced, and not such as might have arisen from moral considerations only, which cannot support judicial action. Set offs,. whether at law or- in equity are-allowed, under the statute, only on demand’s.arising “upon judgment or upon contract, express or implied.” (2 R. S. 354, § 32; 174, § 40.) The- defendant’s claim when it was-assigned was not under a judgment nor- upon contract.. It was not then- a subject of statutory set off. Neither did it come-within the equitable rule upon- which this court has allowed one-judgment to be set off against another for the plain reason that it had not then been fixed by a judgment. Where the right rests solely upon the judgment it never attaches until judgment has been actually entered on both sides. Per Cowen, J., in> Graves agt. Woodbury, (4 Hill, 561;) Hackett agt. Connett, (2 Edwards V. Ch. R. 73.)

The motion must be denied, but as the plaintiff has acted as an assignee of an insolvent debtor, and in good faith, I shall not award any costs against him.