The right to set off on the part of the defendant did not accrue until the dismissal of the complaint in the Supreme Court action. Roberts v. Carter, 38 N. Y. 110; Zogbaum v. Parker, 66 Barb. 344. Three days before, however, the plaintiff’s judgment in the City Court case had been assigned to her attorney; but it is contended that this assignment was taken by the attorney, subject to the existing equities, and that, therefore, the assignment should not be permitted to impair the defendant’s right to set-off. The rule, however, goes no further than that the assignee of a judgment takes it, subject to rights of set-off, which have already attached. 27 Am. & Eng. Ency. of Law, 456.
The equitable right to offset judgments, therefore, never existed between these parties, for when the defendant’s judgment for costs was obtained in the Supreme Court case, the plaintiff did not own the City Court judgment. Perry v. Chester, 53 N. Y. 240.
Littlefield v. Albany County Bank, 97 N. Y. 581, and Davidson v. Alfaro, 80 id. 660, are not opposed to these views. In Davidson v. Alfaro, the plaintiff had an existing claim, although unliquidated, at the time of the defendant’s assignment to his attorneys. So, also, in the Littlefield case, plaintiff’s claim against defendant’s assignor existed, and was due before the execution of the assignment; but, in the case before us, the defendant had no claim or demand until he became entitled to the judgment for costs on the dismissal of the complaint. Hoyt v. Godfrey, 3 Civ. Pro. 118, is not in point. There the court merely held that the assignment of plaintiff’s costs did not prevent the court from offsetting the defendant’s costs in the same action. Here the costs sought to be set off arose in an independent action and in another court. As to the two judgments for costs in the City Court action, it is sufficient to say that they belonged to the plaintiff’s attorney, and his claim thereto was superior to the rights of the adverse party. Husted v. Thomson, 25 Misc. Rep. 548; 57 N. Y. Supp. 558.
Beekman, P. J., concurs.