Cooke v. Smith

Decided April 15, 1845

New York Supreme Court · decided 1845-04-15

The plaintiff recovered a judgment against the defendant in this court for $112,20 damages and costs. Failing to collect the money by execution, he filed a creditor’s bill against the defendant in the court of chancery; but as he did not discover property to the amount of $100, the bill was dismissed with costs.

Relies on People ex rel. Manning v. New York C. P.

Decided 1845-04-15

¶1By the Court,

Bronson, Ch. J.

¶2When the judgments to be set off are in different courts, the moving party should go into that court where the judgment against himself was recovered. That court alone has the direct power to control the proceedings on the judgment. The other court could only enforce its order for a set-off by attachment. (Brewerton v. Harris, 1 John. R. 144; and see 13 Wend. 652; 1 Paige, 623, 4; 1 Hill, 366.) Should we order a set-off the plaintiff might still be under the necessity of invoking the aid. of the court of chancery to control the proceedings on the decree. The motion must be denied, but without prejudice to a motion in the court of chancery.

¶3Ordéred accordingly.