Warner v. Barker

3 Wend. 400 | N.Y. Sup. Ct. | 1829

By the Court,

Marcy, J.

The point in this case deserving most attention is that which relates to Barker’s claim to set off the demand bought by him of Failing against the Union Line Stage Company. When Failing stated to Warner, one of the plaintiffs, that he had transferred his claim against the company to Barker, Warner observed that it should be set off against the note given by Barker last due, that is, the note, as appears satisfactorily by the evidence, on which this suit is brought. This set-off is resisted on the ground that it is not between the parties to the record. The question is fairly presented, whether a set-off can be allowed between parties in interest, but who are not parties on the record ?

The decisions under the English statute of set-off have been extenc¡ed to parties in interest; but our statute has provisions not found in the English act, and it has received a different construction. The provision which directs a balance to be certified in favor of the defendant, in case his claim shall exceed that of the plaintiff, has given rise to a difference in the construction of the two statutes.

Where the plaintiff prosecutes a trustee, the defendant, under our statute, cannot set off a demand against the cestui que trust. (5 Cowen, 231.) It appears from the case of Wolfe v. Washburn, (6 Cowen, 261,) that a demand, to be the subject of a set-off at law, must be between the parties to the suit; if it be due from the plaintiff and another to one of two defendants, it cannot be set off.

It cannot be pretended, if the demand here offered as a set-off had exceeded the demand claimed by the plaintiffs, that both defendants would have been entitled to the balance. Halsted, one of the defendants, had no interest in the demand offered to be set off; nor would the plaintiffs have been liable alone for such balance: the demand offered as a set-off was due from the Union Line Stage Company, and not from the plaintiffs, the officers of that company.

The set-off is also claimed on the ground of an agreement to allow it on the demand for which this suit is brought. The parol proof of what was contained relative to this subject in the minutes of the company having been, ás I think, properly rejected, the only evidence of the agreement is the declaration of Warner to Failing, that he would allow it to Barker on this demand. This declaration to a third person, who then had no interest in the matter to which it related, and made without any consideration, does not, I apprehend, preclude the plaintiffs from interposing any legal objection to the set-off which would exist but for such declaration. I am therefore of opinion that the claim against the Union Line Stage Company, purchased by Barker of Failing, is not a proper subject of set off against the note for the recovery of which this action was brought.

Judgment for plaintiff,