Wood v. Merritt

Robinson, J.

The action was tried February 9th, 1870, and resulted in a verdict in favor of the plaintiff against Sniffen Merritt for $270, and a dismissal of the complaint, as against Edward D. Merritt, with costs.

Judgment was perfected on the verdict against Sniffen • Merritt, February 17th, 1871, in favor of Charles E. Howard, who, by assignment from plaintiff dated February 9th, 1871, had become assignee of the verdict, “ together with any costs accrued or to accrue, and any judgment to be entered therefor.”

Edward D. Merritt, in anticipation of judgment in his favor, on his defence to the debt in suit of a discharge in bankruptcy, executed to his co-defendant, on or about the 15th of January, 1871, an assignment of all his claims to the taxable costs and disbursements in the suit, perfect, except as to the mention of the date, which, upon the dismissal of the complaint against him, was immediately filled in with the date, February 9th.

It contained a covenant to execute a further assignment of the judgment for such costs when entered, and was effectual as a transfer of the costs subsequently recovered (Ely agt. Cook, 2 Hilt., 418). Judgment was entered February 15th, 1871, against plaintiff, Wood, infavor of Sniffen Merritt, as such assignee of Edward D. Merritt (upon an order improvidently granted but not affecting the question), for $151.75, costs and disbursements, and, on the 17th of February, in favor of Charles E. Howard, as assignee of plaintiff, for $477.92, the amount of the verdict, costs and disbursements; and the present motion is to set off the former against the latter.

The assignment of the verdict, after- it was rendered, carried with it in terms, as well as in legal effect, the costs incident to the debt, and the judgment to be entered on such verdict (Mackey agt. Mackey, 43 Barb., 58; Countryman agt. Bayer, 3 How., 386), and no question is raised or suggested, as against the right of Charles E. Howard, as assignee, and substituted plaintiff (aside from this claim to the set-off) to the judgment for the amount recovered against the defendant, Sniffen Merritt.

This set-off ought not to be allowed:

First. The dismissal of the complaint, as against Edward D. Merritt, on the 9th of February, gave him a right to recover costs, which was perfected on the fifteenth. But until these costs were liquidated and adjusted and judgment entered, his right had not matured into a debt or personal obligation against the plaintiff,- for which a suit might be maintained, nor had it become available as a judgment in which the court had jurisdiction to adjust or make a set-off of the respective claims of the parties; as, for instance, where, in a recovery for less than fifty dollars, costs are allowed to defendant, in such case no assignment of the recovery, before judgment, would debar the defendant from a set-off of his costs, and the court would direct such set-off and order execution for any balance due to one party from the other. But the dismissal of the complaint in this case, as to Edward D. Merritt, was, in its consequences, no greater in preventing or interfering with the complete operation of the assignment of the verdict in question, than if he had obtained such dismissal on the same day of another action in which Wood had been plaintiff. In either of the two latter cases the right to the costs, as a debt that could be set off, was inchoate .and subject to future judicial action in liquidating its amount (Supervisors of Onondaga agt. Briggs, 2 Den., 26), and only became perfect on the subsequent entry of judgment therefor.

Secondly. The indebtedness of the defendant, Sniffen Merritt, as established by the verdict, existed when the contract sued upon was broken and the assignment of the verdict rendered for its breach carried the claim, and all costs incident to the prosecution of the action.

Thvrdly. At the time (February ..15th, 1871) the judgment against Wood, sought to be set off, was entered and had first matured into a legal debt against him, Howard had, by previous assignment (dated February 9th, 1871), become the absolute owner of the debt in suit, and incident costs recover-' able against Sniffen Merritt.

Motion to set off judgments denied, with ten dollars costs.