¶1This motion was denied upon the ground that the court should not allow an execution to issue, where it appeared that the defendant had a judgment against the assignee by whom tbe motion was made, greater in amount than the judgment in this court; but that, if Martin wanted to enforce this judgment, he should be put to his action upon it, in which- action Garr mi^pit avail himself of his equitable set-off; and I still adhere to the opinion that that is the proper disposition to make of such a case. It is unnecessary that Martin should be allowed to issue execution and levy upon the property of Garr, or that Garr should issue execution upon the judgment assigned to him, and levy upon the property of Martin, when, by putting Martin to his action upon the judgment, the rights of the parties could be equitably adjusted.
1 Hilt. 411
Betts v. Garr
New York Court of Common Pleas
Decided August 15, 1857
New York Court of Common Pleas · decided 1857-08-15
Appeal by plaintiff from au order of the special term denying a motion for leave to issue execution. The facts disclosed by the affidavit on which the motion was based were as follows:— In 1842, the plaintiff recovered judgment in this court against the defendant for $77.58. In 1854, he assigned the judgment to John M. Martin, who now applied, in the name of the plaintiff, for leave to issue execution.
Decided 1857-08-15