Vail v. Tuthill , 17 N.Y. Sup. Ct. 31 ( 1877 )

Barnard, P. J.:

A Mr. Horne, wbo was a manufacturer of brick, of Robbins island, Suffolk county, became embarrassed and assigned bis. business to defendant and a Mr. Deen to close up tbe same, and from tbe proceeds to pay tbe laborers, and claims wbicb defendant Tutbill beld against Horne. Tutbill was tbe sole actor in tbe assignment. It seems a Mrs. Moffit was in some way bound to pay defendant’s claims against Horne, as security for Horne. Tbe assignment was made in October, 1873. Tbe plaintiff brought wood to tbe yard and exacted a personal liability upon tbe part of defendant to pay for tbe same. Tbe amount of wood and profit was $105.50. At tbe same time be received 12,000 bricks for tbe price of ninety-six dollars, leaving a balance of nine dollars and fifty cents, for wbicb be brings tbis suit. On the 10th November, 1873, tbe plaintiff received another 12,000 of brick at the price of ninety-six dollars, and the defendant seeks to set off this claim in' extinguishment of the plaintiff’s claim, and asks judgment for 'the balance. The plaintiff’s claim was undisputed. The defendant gave evidence tending to show that he was the sole acting assignee. That the property did not realize enough to pay his, defendant’s, claims. That the other claims in the assignment were all paid. That, in November, 1874, Mrs. Moffit commenced an action against him and Deen for an accounting under the assignment. That in the defendant Tuthill’s answer, he charged himself with this claim on the 4th December, 1873, as if the money had been received by him.

The action was not finally disposed of until after this action was tried before the justice, but resulted in a judgment based upon the defendant’s answer, as to the claim in question before the trial in the County Court. The court rejected the judgment roll. I think this was erroneous. The judgment determined the existence of the facts necessary to support it, even as against a stranger. The judgment was complete evidence of title to the demand. It was none the less evidence because it was recorded after the present action was commenced. The plaintiff had no title to be overreached by the decree. If he had, the decree would not affect him. As between Moffit, Horne, Deen and defendant, it established the title of defendant to his claim. (Fuller v. Van Geeson, 4 Hill, 171.)

The plaintiff’s wood was burned in the manufacture of the brick made at Bobbins island. It is really a claim legally against both assignees. The plaintiff gave the credit to defendant only, and therefore can sue him alone, but still equity and justice requires the offset if it can be legally made. By the aid of the judgment roll defendant would have such an equitable right to the claim, individually, as would permit the offset.

I think the judgment should be reversed and a new trial granted, costs to abide event.