By the Court,
Johnson, J.
The finding of the referee, upon all the controverted facts in the case, is conclusive. The only question of any importance, for consideration, *49is, whether the statue of limitations had run against the principal demand of the plaintiff, before the commencement of the action. The action was commenced April 4, 1860. The principal claim of the plaintiff grew out of an assignment of an account for about $200, which he had against one Fitts. This account he assigned to the defendant upon an agreement that the defendant should pay him whatever sum he, the defendant, should have allowed to him on the claim by way of set-off", or counter-claim, in an action about to be commenced by said Fitts against the defendant. Payment .was to be made whenever it was determined what amount was allowed. The action was commenced by Fitts, and the defendant set up and used the’ claim so assigned, in that action, osa set-off or counter-claim to the demand of Fitts against him. The action was referred, and tried by a referee, who, on the 20th .of February, 1854, reported, allowing the defendant $137, on the claim so assigned. Judgment was entered o’n the report, April 29, 1854.- It is'plain, we think, that the plaintiff’s demand against the defendant did not become due, under the agreement, so that the statute commenced to run, until judgment was rendered on the report. Until that time, it was not conclusively established and determined, whether any amount had been allowed to the defendant. The decision of the referee was only one of the steps to such determination, which was consummated and’rendered absolute by the judgment. The action was therefore brought in time to save the demand from the operation of the statute. It appears, from the evidence in the case, and the finding of the referee, that at the March general term of the Supreme Court, in the year following the rendition of the judgment, in the 7th judicial district, the judgment so rendered was reversed, and a new trial ordered, and that afterwards, and before the new trial, the action was settled between the parties thereto.
It is argued, on behalf of the appellant, -that if a right *50of action accrued to the plaintiff by the rendition of the judgment, it must have failed and been defeated, by the reversal of such judgment and the ordering of a new trial in the action afterwards; and inasmuch as it has never been ascertained, and determined in that action, how much was due on the plaintiff’s account against Fitts, over and above the claims of Fitts against the plaintiff, or how much was allowed the defendant as a set-off, on account of the plaintiff’s demand against Fitts, no right of action was shown by the plaintiff against the defendant. But this by no means follows. '
By-the agreement between the parties when the assignment was made, the amount which the defendant was to pay was to depend upon the amount allowed to the defendant in his action with Fitts, and the time of payment was to be when it was determined what the amount was. By the judgment, both the amount and time of payment became fixed, and a cause of action then accrued to recover the amount due as thus ascertained.
The reversal of the judgment, afterwards, could not affect the plaintiff’s right of action, which had become vested. He was no party to the judgment, and could not be affected by its reversal, one way or the other, unless it was shown that such reversal was upon the ground that too much had been allowed the defendant on the plaintiff’s claim against Fitts, as between Fitts and the plaintiff, or on the ground that nothing was due the latter from the former. Perhaps, in such a case, the reversal might have affected the plaintiff as respects the measure of his recovery, and also in respect to the time of payment. But nothing of the kind is shown, and there is no presumption in the defendant’s favor that the reversal was upon any such ground. If it were otherwise, however, in this respect, the defendant is concluded by his settlement of the action with Fitts, after the reversal and before a new trial. After having availed himself of the account assigned *51in one trial, according to the agreement, and had a certain amount allowed, if he has settled the action after the reversal of the judgment, and thus prevented another trial and determination as to the amount due on the claim as between Fitts and the plaintiff, he cannot be heard to say that there has been no determination as to the amount, and that nothing is due by reason thereof. He could not thus, by his own voluntary act, destroy the plaintiff’s claim and right of action, against himself. Had he settled the action before any trial, he might, and we think undoubtedly w.ould, have been liable to the plaintiff for the whole face of the claim or account against Fitts, under the agreement.
[Fourth Department, General Term, at Rochester,
March 5, 1872.
Mullin, P. J., and Johnson and Talcott, Justices,]
In any view the judgment is right, and should be affirmed.