Butler v. Wehle

Daniels, J. The substantial relief demanded by the plaintiffs in this action is the set-off of a demand claimed to exist in their favor against a judgment recovered by the defendant against them, and which she endeavored to collect by execution. Before the commencement of the suit, another action was commenced by them against her for the recovery of the debt relied upon as a set-off. In that action, according to the sworn answer of the defendant, an attachment was issued in the plaintiffs’favor, and the judgment was attached by virtue of it. The affidavit of Mr. Crosby, one of the plaintiffs’ attorneys, admits the issuing of the attachment without denying the seizure of the judgment under it. In this state of the case it may, therefore, be assumed that the statement of that fact in the answer, verified by the affidavit of the defendant’s attorney, is true. It is entirely clear that if the suit, in which the attachment has been issued, shall proceed to judgment, the plaintiffs will be able to satisfy their debt by means of the seizure of the judgment recovered by the defendant against them. And that would constitute a complete defense to the present action to apply it toward the partial extinguishment of the same iudgment as an equitable set-off. A similar consequence would result from a judgment in the plaintiffs’ favor in this action. After that the right to proceed under the attachment would be determined. It is entirely apparent from these facts that both remedies cannot be at the same time prosecuted and enforced by the plaintiffs. They are inconsistent with each other. And beyond that, one is legal and the other is equitable. The policy of the law is opposed to such proceeding. It does not allow one party to vex and harass another with two different and inconsistent proceedings, carried on at the same time, to produce what in substance must be the same result. A different practice would be unreasonable as well as oppressive, and the law will not permit it. Livingston v. Kane, 3 Johns. Ch. 224; Sanger [243] v. Wood, id. 416. The plaintiffs elected to proceed by virtue of their attachment previously issued in an action for the recovery of their debt. ■ And while that proceeding is pending they are concluded by that election from maintaining an action afterward commenced in equity, to apply the debt as an equitable set-off toward the satisfaction of the judgment recovered against them. Goss v. Mather, 2 Lans. 283; Rodermund v. Clark, 46 N. Y. 354. For that reason the plaintiffs had no right to an injunction restraining the enforcement of the judgment against them in this action. The order should be affirmed, with $10 costs, besides disbursements. Order affirmed?