7 Cow. 480 | N.Y. Sup. Ct. | 1827
True, we look to the real interest of the parties; and protect the rights of assignees of choses in action, as far as this can be done consistently with the forms of law. The party who comes to set off a judgment need not show that it was obtained in his name. It is enough that he be the assignee. But he must be really so; and not the mere agent or trustee of another. He must be the absolute owner, holding the beneficial control, or he cannot set off. Here is no less a judgment against the sheriff, because Aikin has chosen to indemnify him. Even had the sheriff obtained a judgment in his own name against the Satterlees, he could not set it off after assigning it to Aikin: much less, where the judgment is neither nominally nor beneficially his own. In these cases, the inquiry must be, what is the interest of the party on record ? If it be nothing, there is nothing to set off If we allow bail, sureties and indemnitors to come in with their judgments, where are we to stop ? . They are not parties before us. That' it is not enough to show a mere formal assignment, we held in Gilman v. Van Slyck this very term. In that case, the
Motion denied.
See Miller v. Gilman, ante 469; N. Y. Dig. vol. 4, tit. Set-off.