Roberts v. Carter
New York Supreme Court
Statement of facts. This was an action to set off judgments, one against the other. On the 21st of July, 1857, the plaintiff Roberts had a report of a referee in his favor for $820, and Carter had a report of a referee against Roberts for $149.17 ; and on same day Carter, without notice to Roberts or his attorney,. assigned said report to Terry, his lawyer, who, on the 22d of July, 1857, by an ex parte order made by Justice Birdseye, (2d district,) was substituted plaintiff…
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Statement of facts. This was an action to set off judgments, one against the other. On the 21st of July, 1857, the plaintiff Roberts had a report of a referee in his favor for $820, and Carter had a report of a referee against Roberts for $149.17 ; and on same day Carter, without notice to Roberts or his attorney,. assigned said report to Terry, his lawyer, who, on the 22d of July, 1857, by an ex parte order made by Justice Birdseye, (2d district,) was substituted plaintiff in place of Carter, and entered up judgment in his own name as plaintiff, instead of Carter’s. (See this case, 15 How.…
1Opinion of the Court
By the court, Gould, Justice.
I do not see that in considering this case, we are necessarily to come in conflict with the decision of this court on a motion in the same matter (as reported in 17 How., 341.) At page 343 of that case, Mr. Justice Davies expressly makes the distinction between a motion where the court will protect the attorney in his costs, and a suit to compel a set-off according to the provisions of the statute. And Mr. Justice Clerke, though concurring in the result of denying the motion, does not concur in the ground upon which it is placed. And no other justice gives any…
2Cases cited2 opinions
- Nicoll v. NicollCourt for the Trial of Impeachments and Correction of Errors · 1836
- Ring v. MaxwellSupreme Court of the United States · 1854
3Cited by2 opinions
- Sanders v. GillettNew York Court of Common Pleas · 1878
- DeFiganiere v. YoungThe Superior Court of New York City · 1864