
    
      JOHN H. HARDT and others, Appellants, v. HERMAN SCHULTING, Respondent.
    
    
      Judgment — cannot be used, as a set-off while am appeal therefrom, is pending
    
    The plaintiff cannot have a judgment recovered by him, from which an appeal has been taken by the defendant, set off against the costs of two motions awarded to the defendant in the same action.
    Appeal from an order denying the plaintiffs’ motion to set-off a judgment in their favor, or so much thereof as was necessary, against the costs of two motions awarded to the defendant in the same action.
    
      William Watson, for the appellants.
    
      Charles Bainbridge Smith, for the respondent.
   Brady, J.:

The plaintiffs having obtained a judgment in this action, and the defendant having obtained orders directing the payment of the costs of two motions, the plaintiffs sought to set-off so much of the judgment recovered in their favor as would extinguish the motion costs. It appeared however upon the application, when presented to the court below, that tbe defendant had appealed from tbe plaintiffs’ judgment.

Tbe learned justice presiding at the Special Term said that when one of tbe judgments is appealed from there can be no set-off in respect to costs.

The spirit of tbe rule in relation to tbe setting off of costs, as stated in Harris v. Palmer (5 Barb., 106), seems to be that tbe subject matter of tbe set-off must be clear and indisputable and conclusive upon tbe party, and must have passed tbe or deal of a judicial determination in a case where a court bad acquired jurisdiction of tbe party, either by his appearance or personal service of tbe process upon him. And in tbe case of Pierce v. Tuttle, reported in the 51st of Howard’s Practice Reports, 193, tbe precise question presented in this case was disposed of by tbe General Term of tbe fourth department, they having declared that a judgment could not be set-off against another if an appeal were pending as to either of them. Tbe case of Terry v. Roberts (15 How. Pr., 65), which declares that an appeal from a judgment suspends tbe right to set-off, is cited with approval in tbe opinion of Mullen, J., who also considered tbe case of Hoag v. Hoag (6 How. Pr., 201), in which a set-off was ordered in tbe event of tbe affirmance of tbe judgment appealed from, and be declared that tbe first case mentioned was affirmed on appeal to tbe General Term, whilst tbe last case stood utterly alone. He also refers to tbe case of De Figaniere v. Young (2 Robertson Supr. Ct., 670), in which it was held that a judgment could not be set-off when an apjieal was pending. Tbe order made by tbe court below is therefore sustained by two judgments rendered at tbe General Term, tbe result being that where tbe judgment appealed from is suspended, it has not sufficient vitality to become tbe subject of a set-off.

Por these reasons tbe order appealed from must be affirmed, with ten dollars costs and tbe disbursements of tbe appeal.

Davis, P. J., and Daniels, J., concurred.

Order affirmed, with ten dollars costs and disbursements.  