At the time of the assignment of the claim of Swift to Burt it was not in judgment, and therefore not the subject of a set-off against the judgment of Prouty against the assignor upon summary application to the court. The assignee of the Swift claim took it subject only to such equities in favor of Prouty as existed at the time of the assignment; and as there was then no right of set-off, upon motion the application was properly denied. When the judgment was perfected the claim was then, for the first time, the subject of a set-off, and could then only be set off by motion as the property of Smith. But he had parted with his right, and if Prouty had any equities, they could only be enforced by action, and could not be asserted by motion. This was decided in Graves v. Woodbury (4 Hill, 559), and reaffirmed in Spencer v. Barber (5 id., 568); Peckham v.Barcalow (H. Den., 112), and Gay v. Gay (10 Paige, 369). It may be questionable whether on applications of this character, addressed to the discretion of the court, the order is appealable, but without considering that question, it may be affirmed upon the authorities cited.
The order must be affirmed.
All concur.
Order affirmed. *Page 547