
    Robert G. Cornell, App’lt, v. Daniel Donovan et al., Resp’ts.
    
    
      (New York Court of Common Pleas, General Term,
    
    
      Filed December 5, 1887.)
    
    1. Counter-claim—What mat be pleaded as.
    There is a distinction between the cause of action and the remedy by action, and though the remedy may temporarily be suspended, so that no action can be maintained, if a good cause of action exists, it may be used as a set-off.
    2. Same—When judgment can be pleaded.
    The defendant had a judgment against the plaintiff, but his remedy was suspended until leave to sue on said judgment could be obtained from the court. Held, that the defendant could plead said judgment as a set off.
    .3. Same—Bar to counter-claim—What can be pleaded as.
    The attorney of plaintiff had sued upon the undertaking given by defendant for the purpose of recovering as his own property the costs that were awarded to plaintiff when a certain order of arrest' was set aside. The decision in said suit by said attorney erroneously gave the attorney judgment. Held, that defendant could not plead said judgment as a bar to defendant’s counter-claim. That as plaintiff had no part in said litigation, the judgment was not evidence against him. ,
    
      J. F. Cornell, for app’lt; J. C. Wolff, for resp’ts.
    
      
      See 13 N. Y. State Rep., 704 and 741.
    
   Van Hoesen, J.A

judgment is a contract of the highest class. An action upon a judgment is an action upon a contract. Taylor v. Root, 4 Abb. Ct. App. Dec., 382. The judgment in the action of Donovan v. Robert Q. Cornell, was I think, available as a counterclaim in this action.

It is said that a set-off cannot be valid if it could not be made the ground of an action. That is not the law of this state. The question was exhaustively considered in the case of Taylor v. The Mayor (82 N. Y., 10), and the court of appeals held that a claim might be a valid set-off, though for some reason no action upon it could at the time be maintained. A distinction was drawn between the cause of action and the remedy of action, and it was held that though the remedy might temporarily be suspended, so that no action could be maintained, if a good cause of action existed, it might be used as a set-off.

There is no.doubt that Donovan had a good cause of action against Robert Gr. Cornell, as he had a judgment against him, nor is there any doubt that his remedy was suspended until leave to sue upon the judgment could be obtained from the court. This left Donovan in a position to plead the judgment as set-off.

Robert C. Cornell’s right to recover upon the undertaking that was given in order to procure the order of arrest, is clear. His attorney had no right of action upon it, nor could the attorney by assignment confer any right of action to his transferee.

It matters not that a court had adjudged that the law gave to the attorney a right to sue upon the undertaking for the purpose of recovering as his own property the costs, that were awarded to Robert Gr. Cornell when the order of arrest was set aside. That decision was erroneous, and Donovan’s remedy was, not to plead the judgment that had been rendered in favor of the attorney’s assignee as a bar to this action, but to appeal from that judgment.

The rights of Robert could not be affected by any proceedings that were taken, without his authority or consent, by his attorneys who were acting on his own behalf, and asserting a claim that was in hostility to the claim that. Robert was prosecuting in this action.

Whether the judgment in favor of the attorney’s assignee was erroneous or not, it was not evidence against Robert, who had no part in the litigation between Donovan and his adversary in the other action.

It was error to deduct from the plaintiff’s claim the amount that had been awarded against Donovan in the action brought by the attorney’s assignee.

The judgment must be reversed, and a new trial ordered, with costs to abide the event.

Larremore, Ch. J., and Daly, J., concur.  