
    William S. De Camp, Individually and as Trustee under the Last Will and Testament of Julia L. De Camp, Deceased, Plaintiff, v. Edward Thomson, Jr., et al., Defendants.
    (Supreme Court, Herkimer Special Term,
    January, 1898.)
    Action to compel the offset of a judgment rendered between the same parties, in regard to which an appeal is pending.
    An undertaking, given under Code of Civil Procedure, § 1327, upon an appeal to the Court of Appeals, suspends all proceedings upon the judgment appealed from until a final decision is had; and hence such a judgment, although merely for costs, cannot, pending such an appeal, be set off, by means of an action by the respondent in the Court of Appeals, against a subsequent judgment, not appealed from by and recovered against him in the Supreme Court for costs by the same persons who were appellants in the Court of Appeals.
    On the 29th day of June, 1896, in an action brought in the Supreme Court, the plaintiff in this' action obtained a judgment against the defendants John A. Dix- and Edward Thomson, Jr., which determined certain property rights and awarded costs to the plaintiff, in the sum of $1,805.34. An appeal was taken by the defendants in the action from that judgment to the Appellate Division of the.Supreme Court, Fourth Department, and .on the 23d day of May, 1897, said last-mentioned court made its decision affirming said judgment with costs, and judgment of affirmance was duly entered. From that judgment of affirmance the defendants duly appealed to the Court of Appeals, and gave an undertaking as provided in section 1327 of the Code óf Civil Procedure, which undertaking was given with the intention on the ■ part of the defendants to stay the execution of said judgment until the decision of the Court of Appeals. The'appeal to the Court of Appeals is still pending, it not having been reached upon the calendar or argued.
    . On the 15th day of April, 1897, in another action brought in the Supreme Court, by the-plaintiff above named against the said defendants. John A. Dix and Edward Thomson, Jr., after .trial had, the complaint in said action was dismissed, and judgment was ordered'in'favor of the defendants John A. Dix and Edward Thomson, Jr,, against the plaintiff, for costs, which amounted to the sum of $306.05. Such judgment was duly entered and notice of the entry thereof was duly served upon the plaintiff’s attorney in that action. In that action a temporary injunction was obtained, and the plaintiff gave an undertaking in the sum of $1,000,. conditioned for the payment to the defendants for. any damages^ that they might sustain by reason of such injunction. Upon the entry of judgment dismissing plaintiff’s complaint such injunction was dissolved. Charles E. Snyder, one of the defendants above named, was the attorney of record for the defendants in that action. Erom that judgment no appeal was taken by the plaintiff, and the time in which an appeal can be taken expired before the commencement : of this action. After the time to appeal to the Appellate Division expired, the defendants in that action, Dix and Thomson, caused' an execution to be issued upon the said judgment, -and delivered the same, to the defendant WaTren H. Eaton, sheriff of the county of Herkimer, and directed him to make such execution out of the property of the plaintiff, and said sheriff was endeavoring, to collect such judgment at the time this action was commenced;
    This action Is brought by the plaintiffs above named, to compel the defendants Dix and Thomson to offset the judgment for $306.05 which they recovered against the plaintiff, against the judgment obtained by the plaintiff against them, .to the amount and extent thereof, and thus compel the defendants to pay the judgment against them, which is pending in the Court, of Appeals, to that extent,, and to restrain them from collecting or attempting to collect the'said judgment so recovered by them from the plaintiff, or any part thereof.
    C. D. Adams, for plaintiff.
    Charles E. Snyder, for defendants..
   McLennan, J.

Section 132Y- of the Code of Civil Procedure provides a method by which a person who has perfected an appeal to the Oortrt of Appeals from a judgment rendered against him may prevent the enforcement of said judgment until the decision of his appeal; The section provides in substance that if the appellant in such case gives a written undertaking, executed in proper forro, to the effect that if the' judgment appealed from is' affirmed he will pay the same, he shall not be called -upon or compelled to pay such, judgment, or any part thereof, until the affirmance of the judgment upon such appeal.

It would seem that by the provisions of the Code referred to a judgment debtor has an absolute right in the case specified to appeal from a judgment against him, and by giving a proper undertaking to defer payment until the judgment appealed from is affirmed, even if his only purpose is delay. If the contention of the counsel for the plaintiff is correct, an appellant in such case may be compelled to pay a judgment appealed from, and which is secured by a proper undertaking, in full or in part, immediately, provided he happens at the time to be the owner of a judgment against his judgment creditor, and is seeking to enforce the same. Such would be the only effect if the course suggested by plaintiff’s counsel is adopted.

The defendants Dix and Thomson have a valid judgment against the plaintiff for $306.05. It is final, the time to appeal having expired. The whole amount of that judgment is payable immediately. The defendants are entitled to such payment, and if it is not paid they are entitled to enforce payment by execution. If the amount of such judgment in favor of the defendants can be withheld from them to apply in payment of plaintiff’s judgment, which is secured by an undertaking on appeal, then to that extent the defendants would be compelled to pay plaintiff’s judgment, notwithstanding their undertaking, and notwithstanding the express provisions of the Code, which declare that in such case they need not pay any part of such judgment until affirmed by the Appellate Court. Under the provisions of the Code the judgment of Dix and Thomson against the plaintiff is payable now, and payment can be enforced immediately. The judgment of the plaintiff against Dix and Thomson is not payable now. It may never be payable, and in no case can. payment be enforced until the Court of Appeals shall have affirmed the same, which may be a year or two years hence.

In the case of Pierce v. Tuttle, 51 How. Pr. 193, decided by the General Term, Fourth Department, the head-note is as follows: “ Where the plaintiff has obtained a final judgment against the defendant in one action, and the defendant has obtained a judgment against the plaintiff in another action in which the parties are the same, from which the plaintiff has appealed, the-defendant’s judgment cannot be set off against the plaintiff’s judgment while the appeal is pending. ■ Proceedings on the judgment appealed from are suspended during the pendency of the appeal.”

It was held in Terry v. Roberts, 15 How. Pr. 65, that an appeal from a judgment suspended the right to set it' off.

In the. case of De Figaniere v. Young, 2 Rob. 670, it was distinctly held that a judgment cannot be .set. off while an appeal from it is pending.

In Hardt v. Schulting, 24 Hun, 345, the head-note is as follows: “ 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.” In the Matter of Kloster, 40 Hun, 374, the same rule is stated.

The cases cited by plaintiff’s counsel do hot in any way conflict with the authorities above referred to. The authorities without exception, so far as I have been able to discover, are to the effect that an appeal from a judgment suspends the right to set-off. As suggested by plaintiff’s counsel, most of the decisions were in cases where a motion was made to compel the set-off, rather than in an action brought for such purpose, but it would seem that that fact can in no way change the fule, and. the authorities would seem to be decisive that in a case such as this the. plaintiff cannot set off the judgment against him against the judgment recovered by him against the defendants, whije the appeal therefrom is pending in the Court of Appeals.

The evidence shows that the judgment recovered by Dix.and -Thomson against the plaintiff is solely for the costs of the action, and that the defendant Snyder was the attorney of record in that action, and that he has not been paid for his services. - It is insisted by the defendants that such judgment belongs fo the attorney, and that he has a lien upon the same for his services as such, and, therefore, that it cannot be set off. It is unnecessary to pass upon that question, in view of the conclusion reached upon the first proposition. No facts are presented by the evidence in this case which would justify the court in staying the collection of the judgment obtained by Dix and Thomson against the plaintiff. The evidence shows that Dix and Thomson are responsible, and that plaintiff’s judgment against- them is abundantly secured.

There is still another reason'"why a stay should not be decreed in ,this. case. In the action brought by the plaintiff against Dix and Thomson, and in which action they recovered the judgment in question against the plaintiff as before said, the plaintiff procured an injunction pending the determination of that action,, and executed and delivered to the defendants a bond in the sum of $1,000 conditioned for the payment by the plaintiff to the defendants of all damages which they should sustain by reason of such injunction. By the recovery of the judgment in question such injunction was dissolved, and the defendants are entitled to proceed upon the bond so given, and to enforce the payment - of any damages which they have sustained by reason of the issuing of the injunction in that action, and until the judgment involved in this action is collected from the plaintiff, or it is determined whether it can or cannot be collected, it cannot be accurately determined what sum, if any, tire defendants are entitled to recover as damages for the issuing of the injunction referred to. In any event plaintiff’s action was unnecessary. The plaintiff could have obtained the same relief demanded in this action, if entitled to it, by motion, and the expenses of this litigation could thus have been avoided.

But, as before suggested, the proof does not disclose any reason why the relief demanded should be decreed. The defendants are abundantly responsible. The judgment. recovered by the plaintiff-is abundantly secured. Ro-thing appears to indicate that any hardship will result to the plaintiff, that his property will be sacrificed, in case he- pays the judgment recovered against bim at the present time.

It follows that the plaintiff’s complaint should be dismissed, with costs. Judgment is ordered accordingly.

Judgment accordingly.  