28 N.Y.S. 288 | N.Y. Sup. Ct. | 1894
The action is for the foreclosure of a mortgage of real estate "made by the defendant, and the injunction which is prayed for in the complaint, and was granted temporarily on the ex parte application of the plaintiff, restrains the defendant from collecting or disposing of a judgment which he has recovered and now holds against the plaintiff, and upon which execution has been issued, until the determination of this action and the sale of the mortgaged premises, and the entry of judgment therein for a deficiency,—if a deficiency shall arise on such sale,—to the end that the amount of such deficiency may be applied on the defendant’s judgment above mentioned, in payment thereof. We believe that
Upon all the facts thus disclosed, we think the plaintiff fails to establish any equities which entitle him to the extraordinary remedy of an injunction. He took the assignment of the mortgage after the defendant recovered his judgment against him, and evidently for the purpose of preventing or impeding the collection of that judgment. It does not appear how much he paid, or that he paid anything, for the mortgage; and if the security was, or was understood to be, as inadequate as his allegations would make it appear, it is not to be supposed that he took it except at a very considerable discount. In any case, his venture was largely speculative, and he should be content to await its issue in the ordinary course of litigation. In no aspect of the case, based upon the proofs before us, does the plaintiff seem to be entitled to the relief in question. On general principles, and .aside from special considerations which arise in this case, the claims involved are not such as are subject to equitable set-off. Hatch v. Mayor, etc., 82 N. Y. 442; Pond v. Harwood, 139 N. Y. 111, 34 N. E. 768. In both of these cases the rule is stated, in substantially the same language, that:
“Something more than the mere existence of reciprocal and independent demands is required, to authorize a set-off in equity, when not allowable under the statute of set-offs. Circumstances must be shown from which it can be inferred that one debt was contracted on the faith of the other, or that there was an agreement between the parties that the one should be deducted from the other, or some other intervening equity which renders the interposition of that court necessary for the creditor’s protection.”
And in the latter of the two cases the court quotes from Hackett v. Connett, 2 Edw. Ch. 73, the statement that:
“Equity decrees a set-off, independent of the statute, only where mutual debts exist, and where there was either an express or implied agreement of stoppage pro tanto, or mutual credits.”
The case at bar is the farthest possible from meeting the requirements of the rule, as last stated; and, if it is to be brought within the rule at all, it must be by virtue of some particular intervening equity which demands the extraordinary interposition of the court in the plaintiff’s behalf. But it is very apparent, we think, that all the particular circumstances of this case make against the application of the rule, and not in its favor. The fact chiefly urged as raising an equity in favor of the plaintiff is that of the insolvency of the defendant. But, as we have already said, that fact has no consequence, if the claim of the plaintiff is sufficiently secured by his specific lien; and the proof largely preponderates in favor of the latter conclusion. But, even if it were otherwise, the plaintiff can assert no equity based upon the fact of insolvency. He took his assignment of the mortgage with full knowledge of that fact, and,