
    SUPREME COURT.
    Dennis Warden, appellant, agt. Emma Frost, respondent.
    Set-off— Bight of— Code of Civil Procedure, section 3234.
    Where plaintiff had a verdict for forty-four dollars and nine cents, and judgment was entered for that sum, the defendant being entitled to costs, another judgment was entered for seventy-four dollars and ninety-four cents costs in his favor. The judgment in favor of the plaintiff, after its entry, and before the judgment was entered in favor of the defendant, was, by the plaintiff assigned to his attorneys in the action in consideration of their services as such attorneys:
    
      Held, that there were two judgments entered in this action, where properly there could be only one, and that based upon the verdict, and in such case the lesser amount should be set-off as against the larger of the sums to which the respective parties are entitled, and the judgment be effectual for the difference in favor of the party entitled to it. This right is one of the incidents of the action, and is superior to the lien of the attorneys or to the effect of an assignment.
    
      Fifth Department, General Term, January, 1885.
    
      Before Barker, Haight, Bradley and Lewis, JJ.
    
    Appeal from order of Erie county court setting aside judgments entered in favor of the parties respectively, and directing judgment to be entered for the balance of the two judgments.
    
      Jenkins, Cony don & Jenkins, for appellant.
    
      Adelbert Moot, for respondent.
   Bradley, J.

— The plaintiff had a verdict for forty-four dollars and nine cents, and judgment was entered for that sum. The defendant was entitled to costs and another judgment was entered for seventy-four dollars and ninety-four cents costs in his favor.

On defendant’s motion an order was made setting aside both judgments and directing entry of one judgment for the residue cf costs, after deducting the amount of the verdict.

The judgment in favor of the plaintiff, after its entry, and before the judgment was entered in favor of the defendant, was, by the plaintiff, assigned to his attorneys in the action in consideration of their services as such attorneys.

The plaintiff’s counsel contend that the assignees of the judgment are entitled to protection, and that the judgment cannot, on motion, be set-off, or the amount of it applied in satisfaction pro tanto of the defendant’s costs.

It is well settled that a judgment in one action cannot, by motion, be set off against a judgment in another action, or against a third person who is a bona fide assignee of the latter judgment (Perry agt. Chester, 53 N. Y., 240; Prouty agt. Swift, 10 Hun, 232; Roberts agt. Carter, 38 N. Y., 107). The counsel for the plaintiff seek to apply that rule to this case, and with that view assert that the judgment was assigned before the defendant’s judgment was entered, and therefore no right to set off accrued to the defendant before the assignment was made (Firmenich agt. Bovee, 1 Hun, 532).

If the motion here was to set off judgments in two actions, there would be no difficulty in supporting the position on the part of the plaintiff (Ennis agt. Curry, 22 Hun, 584; S. C. 61 How., 1). But this-is not that case, there were two judgments entered in this action when, properly, there could be only one, and that based upon the verdict (Bunnell agt. Griffin, 8 Abb., 39). And in such case the lesser amount should be set off as against the larger of the sums to which the respective parties are entitled, and the judgment be effectual for the difference in favor of the party entitled to it (Code Civil Pro., sec. 3234; Johnson agt. Farrell, 10 Abb., 384). This right is one of the incidents of -the action which is superior to the lien of the attorneys or to the effect of an assignment. It is the right of either party to the action to have the result represented by the difference and to thus make or receive payment to the extent of the smaller of the two amounts which may be awarded to them respectively in the action. This rule the law applies to actions and is not disturbed by the Code. The provisions of the Revised Statutes (2 R. S., 354, sec. 18) relating to set offs had relation to actions for that purpose where a different rule, to some extent, prevailed than that when sought by motion (Ennis agt. Curry, 22 Hun, 584).

We think the court below properly disposed of the motion.

The order should be affirmed.

Baekee, Haight, and Lewis, JJ., concur.  