
    Robert A. Knight, as Assignee in Insolvency of James McKeon, Appellant, Respondent, v. Simon Rothschild, as Surviving Partner of the Firm of S. Rothschild & Brother, Respondent, Appellant.
    ' First Department,
    May 14, 1909.
    Insolvency — right of assignee — counterclaim — action on judgment — merger.
    A claim against an insolvent, acquired after notice of the appointment of the assignee,, cannot be used by a debtor of the insolvent for the purpose of defeating the assignee’s claim. ■
    Where a firm presentedia judgment against ¡an insolvent in the Massachusetts courts and accepted a dividend thereon, it cannot use what remains unpaid on the judgment for the purpose of defeating a claim made against .it by the assignee of the insolvent in the courts .of this State.
    The assignee of an insolvent, residing in Massachusetts, obtained a judgment in that State against merchants residing in New York for the value of goods illegally consigned to them by the insolvent just before his assignment,, which . they had levied upon and sold under a judgment obtained against the insolvent in the courts of this' State after hisi assignment and. the appointment of his assignee. Thereafter, such assignee brought this action in this State against said merchants upon such judgment and for the balance unpaid thpreon. The defendants seek to counterclaim said judgmént against the insolvent, it having been recovered more than ten years before the commencement of this action, against the judgment upon which this action is brought.
    
      Held, that such judgment cannot be used as a counterclaim;
    That neither the judgment upon which the action is brought, nor the ¡cause of action upon which it was based, ever belonged to the insolvent;
    That as the judgment was obtained for the value of goods illegally consigned by the' insolvent to the defendants it cannot he defeated' by a claim existing against the insolvent at the time the assignee was appointed.
    
      Held, further, that the defendants’ claim against the insolvent was merged in their judgment against , the insolvent and that judgment was not recovered until after the appointment of the assignee.
    Cross-appeals by tike plaintiff, Robert A- Knight, as assignee, etc., and by the defendant, Simon Rothschild, as surviving partner, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of blew York on the 29th day' of May, 1908, upon the decision of the court rendered after a trial at the Rew York Trial Term, a jury having been waived.
    
      
      Omri F. Hibbard, for the plaintiff.
    
      B. F. Einstein, for the defendant.
   McLaughlin, J.:

This action was brought to recover the unpaid balance of a judgment recovered in the Superior Court of Massachusetts by the plaintiff as assignee in insolvency of one James McKeon against the firm of S. Rothschild & Brother, of which the defendant is the surviving member. On the 7th of January, 1896, McKeon was a resident of Massachusetts, and on that day insolvency proceedings were commenced against him which resulted in the appointment of the plaintiff as assignee in insolvency and McKeon’s estate vested in him under the. statutes of Massachusetts as of that date. On the twenty-third of December preceding, the firm of S. Rothschild & Brother, and also the firm of S. F. & A. Rothschild- comménced separate actions against McKeon in the Supreme Court of the State óf New York for goods sold and delivered, and on the 16th of January, 1896, each recovered a judgment. Shortly.before McKeon was declared an insolvent he consigned to the firm of S. Rothschild &. Brother in the city of New York a quantity of goods which were levied upon and sold under execution issued upon its judgment. The amount realized upon the sale was about $2,800 — the judgment being for about $4,000. On the 17tli of April, 1896, this plaintiff brought an action in the courts of Massachusetts to recover from S. Rothschild & Brother the value of the goods consigned to it, upon the ground that such consignment was void as in fraud of the rights of creditors under the statutes of that State. The firm appeared and defended the action, but in March, .1899, judgment was recovered against it for something over $7,000. This judgment was affirmed by the highest court of Massachusetts and thereafter by the Supreme- Court of the United States. (Rothschild v. Knight, 176 Mass. 48 ; 184 U. S. 334.) The present action is brought upon that judgment, which remains unpaid except to the extent of about $4,5.00, which has been paid to apply thereon.

The defendant set up as a counterclaim the judgment which his firm had obtained against McKeon, as well as the one which the firm of S. F. & A. Rothschild recovered against him, less fifteen per cent thereof, which had been paid by way of dividend in insolvency proceedings in Massachusetts. As already stated, the judgment recovered by S. Rothschild & Brother had been satisfied1 to the extent of some $2,800, leaving a balance unpaid of some $1,200. The defendant, however, claimed that he was entitled to counterclaim’ the whole amount of this judgment irrespective of the amount actually due thereon, at least to the extent of defeating plaintiff’s claim, since what was paid was from the sale of the same goods for which this plaintiff had obtained his judgment.

The trial court held that the plaintiff was entitled to recover $935.80, which was the full amount claimed by him less defendant’s counterclaim, which was allowed to the extent of the amount actually due upon both judgments. From the judgment which was entered upon a decision to this effect, both parties-sappeal; the plaintiff upon the ground that the court erred in allowing’ either judgment as a counterclaim; and the defendant because the full amount of the S. Rothschild & Brother judgment was not .allowed.

First. As to the F. & A. Rothschild judgment, it was not a proper offset to and could not be used in defeating the plaintiff’s claim. It was not assigned to the defendant until, some time in April, 1901. A long time prior to the assignment the defendant had knowledge of the insolvency proceedings in Massachusetts and that the plaintiff was the assignee of the insolvent’s estate. A claim against an insolvent, acquired after notice of the. appointment of his assignee, cannot be used by a debtor of the insolvent for the. purpose of defeating the assignee’s claim. (Code Civ. Proc. § 502.) If it could, it would be not only an easy way of destroying the Bankruptcy Act, but also of permitting the person acquiring it to obtain an unlawful preference over other creditors. (Smith v. Brinkerhoff, 6 N. Y. 305; Fera v. Wickham, 135 id. 223; Frank v. Mercantile Nat. Bank, 182 id. 264.) Flot only this, but when S. F. & A.. Rothschild subjected itself to the jurisdiction of the Massachusetts courts, by there presenting its judgment for payment and accepting the dividend directed to be paid thereon, it could not thereafter, in any other jurisdiction use what remained unpaid for the purpose of defeating a claim made by the assignee for the benefit of all the creditors. By presenting its claim, it in effect agreed that all creditors should be treated , alike, except in so far as they might have a legal preference under the law of Massachusetts.

Second. As to the S. Rothschild & Brother judgment a somewhat different question is presented. It was recovered more than ten years prior to the commencement of this action and the defendant could have maintained a separate action upon it against McKeon, without leave of the court. (Code Civ. Proc. § 1913.) A judgment is a contract and an action upon a judgment is an action upon contract against which a counterclaim may be interposed. (Code Civ. Proc. § 501, subd. 2; Taylor v. Root, 4 Keyes, 335; Gutta Percha & Rubber Mfg. Co. v. Mayor, etc., 108 N. Y. 276; Cottle v. N. Y., W. S. & B. R. Co., 27 App. Div. 604.) The judgment against McKeon cannot be used as a counterclaim against this plaintiff unless he brings this action as the assignee or representative of McKeon. (Code Civ. Proc. § 502, subds. 1, 3.) He is neither. His action is predicated upon a judgment, but one which never belonged to McKeon or in which he had any interest. The cause of action which resulted in the judgment was one in which McKeon never had an interest and which he could not have enforced, While it is true the amount of the recovery by the assignee in the Massachusetts action was measured by the value of the goods consigned by McKeon to S. Rothschild & Brother, the right to recover at all was based not on such value, but on the illegal consignment and it cannot, therefore, be defeated by a claim against McKeon existing at the time the plaintiff was appointed assignee. If it could, then the defendant should have asked to have such claim allowed as an offset or counterclaim in the Massachusetts action and by not so doing he deprived himself of so using it in another action brought between the same parties to enforce the judgment there recovered. And even though it be assumed that the cause of action which resulted in the plaintiff’s judgment in the Massachusetts court originally belonged to McKeon and passed to the assignee when he was appointed, January 7, 1896, it does not aid the defendant because his judgment did not exist at the time the plaintiff was appointed assignee. (Smith v. Brinkerhoff, sufra; Myers v. Davis, 22 N. Y. 489.) The defendant then had simply a claim against McKeon for goods sold and delivered. This claim was merged in the judgment recovered in the action against McKeon. That judgment was not recovered until sometime subse quent to the plaintiff’s appointment, and it is not a proper offset against the claim made by the plaintiff. (Lowell v. Lane, 33 Barb. 292; Lucas v. East Stroudsburg Glass Co., 38 Hun, 581; Silver v. Krellman, 89 App. Div. 363 ; Perry v. Chester, 53 N. Y. 240 ; Swift v. Prouty, 64 id. 545.)

It follows that the- judgment appealed from by the defendant' is affirmed, with costs, and the judgment appealed from by the plaintiff is reversed and a new trial ordered, with costs to plaintiff to abide event.

Patterson, P. J., Ingraham, Laughlin and Clarke, JJ., concurred.

On defendant’s appeal judgment affirmed, with costs; on plaintiff’s appeal judgment reversed, new trial ordered, costs to plaintiff to abide event. Settle order on notice.  