Satterlee & Satterlee v. Ten Eyck

Curia. 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 [482] form, of the purchase was well enough; but it was not bona fide, and absolute. The bona fides with which a set-off is created, is always a legitimatesubject of inquiry. *Fair v. M'Iver, (16 East, 131,) is a strong case to show this. The set-off there was under the statute. The subject of it was "a debt which the bankrupt was bound to pay; but because it was created in fraud of a contract to pay in a bill, it was disallowed. The difficulty in the case before us, however, beside the questionable manner in which the set-off was got up, is, that the party who proposes to set off, is the mere trustee; and Turner the cestui que trust of an equitable interest. Any judgment in favor of a stranger, might as well be set off, if against the Satterlees.[1] Motion denied. Footnotes [[1]] See Miller v. Gilman, ante 469; N. Y. Dig. vol. 4, tit. Set-off.