
    Jason Alexander, Adm’r, etc., App’lt and Resp’t, v. Horace T. Durkee, Resp’t and App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed December, 1887.)
    
    Equity—Set-off—When not granted.
    A decree was entered upon an accounting before a surrogate’s court adjudging that there was in the hands of the plaintiff, as administrator, the sum of $851.39 belonging to the defendant, which the surrogate directed to-be paid to him by applying the same upon four promissory notes by him made and held by the plaintiff as administrator; one for $152, dated April 1, 1878, one for $200, dated April 1, 1881, one for $310.43, dated April 1, 1876, and one for $191.87, dated December 10, 1870. The plaintiff, in pursuance of the decree, applied on the first named note the principal and interest, paying it in full. Upon the other three notes he applied certain of the interest, and the balance of the principal he applied on the note last named. Action was then brought upon the unpaid notes and judgment rendered for the balance. An order was made declaring that the surrogate had no power to direct the payment of the notes in the hands of the plaintiff, but inasmuch as certain moneys had been applied on the notes in suit, paying them in part, the defendant could not in equity have the entire sum of $351.39 applied upon the judgment, as it would operate as-double payment, but as to the amount of the first named note and interest that it be applied on the judgment and the judgment reduced by that amount. Éfe’d, that conceding that the surrogate’s court had no power to-apply the amount fouud due the defendant in payment of the notes held by the administrator, yet the whole amount of his claim having been applied in the action on the notes and judgment taken only for the balance, the defendant was without any equitable claim, and the order should be reversed.
    
      W. E. & F. E. Hughitt, for pl’ff; James B. Cox, for deft.
   Haight, J.

The defendant moved the court for an order that the sum of $351.39, the amount found his due by decree of the surrogate’s court in the hands of the plaintiff, be applied upon the plaintiff’s judgment in payment thereof to that extent.

It appears from the findings of the referee that upon art accounting before the surrogate’s court, a decree was entered adjudging that there was in the hands of the plaintiff, as administrator, the sum of $351.39 belonging to the defendant Horace T. Durkee, which the surrogate directed to be paid to Durkee by applying the same upon four promissory notes made by Durkee and held by the plaintiff, as administrator; one of which was for $152, dated April 1, 1878; one for $200, dated April 1, 1881; one for $310.43, dated April 1, 1876; and one for $191.87, dated December 10, 1870; that the plaintiff, pursuant to such decree, applied upon the first named note, the amount of the principal and interest, paying it in full. Upon the other three notes he applied the interest due to July 23, 1885, and the balance of the $351.39, to wit, twenty-nine dollars and eighty-two cents, he applied upon the note for $191.87. Suit was then, brought upon the three notes remaining unpaid upon which the judgment herein was entered for the balance due after applying the $351.39, as aforesaid.

The referee further found that the surrogate had no power to direct the payment of the notes in the hands of the plaintiff; but that inasmuch as the interest and the item of twenty-nine dollars and eighty-two cents, had been applied upon the notes in suit, paying them to that extent, that the defendant could not, in equity, have the entire sum of $351.39 applied upon the judgment for the reason that it would operate as double payment; but as to the amount of the first named note of $152, and the interest accrued thereon, amounting in the aggregate to $199.47, he directed that amount to be applied upon the judgment; and that it should be reduced in that amount.

The order of the special term confirmed the report of the referee, and ordered the application therein recommended. The conclusion of the referee and of the special term is not in accord with that which appears to us to be just and equitable. For the purpose of the argument we shall concede that the referee is correct in his conclusion that the surrogate’s court had no power to adjudge that the amount that he found due Durkee should be applied in the payment of the notes held by the administrator. The fact exists, however, and is not controverted, that by the terms of the decree the plaintiff, as administrator, owed Durkee the sum of $351.39, and that Durkee, in turn, owed the administrator upon the notes held by him, the sum of $800, and upwards; that the plaintiff did, in fact, apply the whole amount of the $351.39 upon the notes in question, and that in the suit subsequently brought by him judgment was only taken for the balance actually due.

The referee appears to have made a distinction between the amount applied upon the first named note and that applied upon the other three notes, concluding that the amount applied upon the latter notes could not equitably be applied upon the judgment, as it would result in double payment, etc. But is not the same true in reference to the first named note? This note was past due, and was in the plaintiff’s hands, and he had the right to have it paid, and it was treated by him as paid in the action brought by him upon the other notes. It appears to us that the equities in reference to this note are equally as strong as they are in reference to the payment applied upon the other notes; especially if it is true, as is claimed, that the defendant is insolvent and a non-resident. The defendant is in a court of equity asking for an equitable offset; no question is made in reference to his liability upon these notes, or the amount thereof; he, in fact, produced the proof of their existence upon the hearing before the referee. Under the conceded and established facts, he has had his pay in full, and is without equitable claim.

For these reasons we are of the opinion that the order should be reversed, with ten dollars costs and disbursements, and the motion denied.

Smith, P. J., Barker and Bradley, JJ., concur.

Order reversed, with ten dollars costs and disbursements, and motion denied.  