#### HENRY L. BUTLER and others, Appellants, *v.*LOUISA DOUAI WEHLE, Impleaded, etc., Respondent.

*Remedies*-= *election*of— Attachment— *Action in equity to set off debt against judgment.*

Where a party against whom a judgment has been recovered commences an action against his judgment creditor for the purpose of recovering a claim existing in his favor against such judgment creditor, and in such action issues an attachment and by virtue thereof attaches such judgment, he is precluded, while the suit in which such attachment issued is pending, from maintaining an action in equity to apply the debt sued on in such action as a set-off against the judgment recovered against him.

Appeal from order denying a motion to continue an injunction.

On May 26, 1871, Mrs. Wehle recovered a judgment against Butler, Broome *&*Olapp, the plaintiffs, for $5,287.44, in the Superior Court of the city of .New York, on which an execution was issued.

The defendant, Mrs. Wehle, was indebted to Butler, Broome *&*Olapp, the plaintiffs, and in December, 1869, a suit was commenced, and is still pending, in the New York Common Pleas, in favor of the plaintiffs and against her, to recover that debt.

On the 1st of November, 1874, attachments were issued in said action from the Court of Common Pleas in favor of the plaintiffs ■ *55therein, which attachments were served on Butler, Broome & Clapp, and their said indebtedness to Mrs. Wehle on said judgments was duly attached by the sheriff.

This action was brought to restrain the defendant from collecting the amount of her judgment against the plaintiffs; and a preliminary order and injunction were granted herein, but the injunction not continued on the return day of the order to show cause accompanying it.

*Stephen W.*Fullerton, for the appellants.

That a claim, not in judgment, against an insolvent may be set off by a court of equity against a judgment in favor of the insolvent, is an ancient and well recognized ground of original equity jurisdiction. (Waterman on Set-off [2d ed.], pp. 18, 19 and 20; p. 84 and note; p. 124 and note; p. 184 and note, and pp. 450 to 465, and cases there cited; *Lindsay*v. *Jackson,*2 Paige, 581; *Gay*v. *Gay,*10 id., 369; *Simpson*v. *Hart,*14 Johns., 63; *Smith*v. *Felton,*43 N. Y., 419 ; *Zogbaum*v. *Parker,*55 id., 120; *Rose*v. *Hart,*2 Smith’s Lead. Cases, 309; *Pond*v. *Smith,*4 Conn., 297; *Robbins*v. *Holley*[Court of Appeals, of Kentucky], 1 Monroe, 191; *Wolcott*v. *Sullivan,*1 Edw. Ch., 399; *Matter of Globe Ins. Co.,*2 id., 625; *White*v. *Wiggins,*32 Ala., 424; *Merrill*v. *Souther,*6 Dana, 305.) The insolvency of the party against whom the set-off is claimed, is a sufficient ground for the exercise of the jurisdiction of a court of equity in allowing a set-off in cases not provided for in the statute, although the demands are not in judgment. *(Gay*v. *Gay,*10 Paige, 369; *Lindsay*v. *Jackson,*2 id., 581, and cases there cited.)

*Chas. Wehle,*for the respondent.

The court was right in refusing to continue the injunction, as a continuance of it would be an interference with the process of a court of co-ordinate jurisdiction. *(Bagg*v. Jefferson, 10 Wend., 615.) Assuming, for the sake of the argument, that this court had the right to prevent another court of co-ordinate jurisdiction from exercising its lawful jurisdiction in a suit therein pending, it ought not to exercise that right to offset a simple debt against a judgment. *(Dunkin*v. *Vandenberg,*1 Paige, 622; *Harris*v. *Palmer,*5 Barb., 105; Waterman on Set-off, §§ 323, 332.) The pretended set-off is already secured to the plaintiffs by attachments levied at their instance on defendant’s property.

*56Daniels, J.:

The substantial relief demanded by the plaintiffs in this action, is the set-off of a demand claimed to exist in their favor against a judgment recovered by the defendant against them, and which she endeavored to collect by execution. Before the commencement of the suit, another action was commenced by them against her for the recovery of the debt relied upon as a set-off. In that action, according to the sworn answer of the defendant, an attachment was issued in the plaintiffs’ favor, and the judgment was attached by virtue of it.

The affidavit of Mr. Crosby, one of the plaintiffs’ attorneys, admits the issuing of the attachment, without denying the seizure of the judgment under it. In this state of the case, it may, therefore, be assumed that the statement of that fact in the answer, verified by the affidavit of the defendant’s attorney, is true. It is,entirely clear, that if the suit in which the attachment has been issued shall proceed to judgment, the plaintiffs will be able to -satisfy their debt by means of the seizure of the judgment recovered by the defendant against them. And that would constitute a'complete defense to the present action, to apply it toward the partial extinguishmentof the same judgment, as an equitable set-off.

A similar consequence would result from a judgment in the plaintiffs’ favor in this action. After that, the right to proceed under the attachment would be determined. It is entirely apparent from these facts, that both remedies cannot be at the same time prosecuted and enforced by the plaintiffs. They are inconsistent with each other. And beyond that, one is legal, and the other is equitable. The policy of the law is opposed to such proceedings. It does not allow one party to vex and harass another with two different and inconsistent proceedings, carried on at the same time, to- produce what in substance must be the same result. A different practice would be unreasonable as well as oppressive, and the law will not permit it.*

The plaintiffs elected to proceed by virtue of their attachment previously issued in an action for the recovery of their debt. And while that proceeding is pending, they' are concluded by that election from maintaining an action, afterward commenced in equity, to *57apply the debt as an equitable set-off toward the satisfaction of the judgment recovered against them. *

For that reason the plaintiffs had no right .to an injunction restraining the enforcement of the judgment against them in this action. The order should be affirmed, with ten dollars costs besides disbursements.

Davis, P. J., concurred.

Ordered accordingly.

*

 Livingston v. Kane, 3 Johns. Ch., 224; Sanger v. Wood, id., 416.

*

 Goss v. Mather, 2 Lans., 283; Rodermund v. Clark, 46 N. Y., 354.