Miller v. Starks

| N.Y. Sup. Ct. | Oct 15, 1816

Per Curiam.

The only question worthy of notice in this case is, that which relates to the offer on the part of the defendant, to set off the judgment which he had obtained against the plaintiff. This judgment would have been a good set-off had not the plaintiff’s goods and chattels been taken under the attachment, and were then remaining in the custody of the law, for the purpose of satisfying the judgment; and, if so, the judgment, so far as respects the liability of the plaintiff, was satisfied. The constable, upon the attachment* is required to take, and safely keep, the property, to satisfy the judgment; and to' allow this judgment to be set off under such circumstances, would be making the plaintiff twice responsible for the same demand. The set-off was, therefore, properly rejected. The admission of parol proof oí the proceedings on the-attachment-was improper, but this was cured by the subsequent introduction of the certified copy of the proceedings, by the defendant himself. The defendant cannot object to the .pláintiíPs having been sworn as -a witness,- as it ;jvds doné át his- páfiicülár- request. The judgment must, accordingly, be affirmed. !

Judgment affirmed.