Terry v. Roberts

Decided October 15, 1857

New York Supreme Court · decided 1857-10-15

Roberts commenced an action against Carter. Five days thereafter Carter commenced an action against Roberts. Both causes referred to Isaac Dayton, Esq., as sole referee, and by agreement the report in each case was to be simultaneously. The referee reported due Roberts from Carter, $800. Due Carter from Roberts, $149. The same day that the reports were given, Carter assigned the report in his favor to Terry, and Terry was ex parte substituted as plaintiff upon the record.

Good law ✅— No negative treatment on recordhow we know

Decided 1857-10-15

How this case has been cited

Cited by 5 later decisions — most recently June 1899

5 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Roosevelt, Justice.

¶1The plaintiff Terry stands in the shoes of his assignee, and was subject in equity, at least, to the same set-off by Roberts. Although an actual set-off is not allowable of one judgment against another when the first is appealed from, yet the only effect of the appeal (unless ultimately successful) is to suspend and not to extinguish the set-off.

¶2The proper remedy, therefore, is a stay of proceedings, until the issue of the appeal can be known, on giving the proper security.

¶3Note.—Affirmed on appeal at general term, November, 1867. Mitchell, Clerke and Peabody, Justices.