Pierce v. Tuttle

Mullin, P.J. — It was held, in Terry agt. Roberts (15 How. Pr. R., 65), that an appeal from a judgment suspended the right to set it off, and that the proper remedy, in such case, was to stay the proceedings of the party to the judgment, against which the set-off was sought, until the determination of the appeal. James, J., in Hoag agt. Hoag (6 How. Pr. R., 201), ordered a set-off, in the event the judgment appealed from was affirmed. The case first cited was affirmed, on appeal to the general term, while the case last cited stands utterly alone. The superior court of N. Y.,in 2 Roberts, 670, held, in the most unequivocal terms, that [195] a judgment cannot be set off, while an appeal from it is pending, and cites 6 Cow., 613; 1 Sandf., 626, and J. C. R., 351. Such, I have no doubt, is the law. The order appealed from must be reversed, without costs to either party. And proceedings on the execution against the defendant are stayed twenty days, to enable him to apply, at special term for a stay of proceedings on said execution, until the decision of the appeal, upon such terms as may be just.