Opinion
November Term, 1899.
Philip J. Britt, for the appellant, Thomas J. Dunn.
Moses Weinman and Achille J. Oishei, for the respondents.
I think this application should have been granted. The affidavit of the defendant alleged the facts to bring the application within section 1422 of the Code of Civil Procedure. By such affidavit it appears that an attachment was issued in an action brought by one Cinque against one Guiseppe Cassani, which directed the defendant, as sheriff of the county of New York, to attach property of the said Cassani within his county sufficient to satisfy the sum of $1,360, with interest, costs and expenses; that by authority of such warrant of attachment the defendant levied upon certain property alleged to be the property of the defendant in that action, and took the same into his custody; that thereafter the plaintiff claimed to be entitled to such property; that his claim was brought before a sheriff's jury, of which notice was given to the plaintiff as claimant and also to the plaintiff in the attachment suit; that said jury found the title to the said property to be in the claimant (the plaintiff in this action); that thereupon an undertaking was given to the sheriff in the sum of $1,850, whereby the sureties agreed to indemnify the sheriff for or by reason of the levying, attaching or making sale under and by virtue of said attachment; that thereafter a copy of the said undertaking with notice of justification of the sureties was served upon the plaintiff in this action, and that such proceedings were had that such bond was duly approved by one of the justices of the Supreme Court and filed with the clerk of the court.
By sections 1421 to 1423 of the Code, provision is made for the substitution of the indemnitors of the sheriff in such an action, and this provision has been declared by the Court of Appeals to be constitutional. ( Hein v. Davidson, 96 N.Y. 175.) The only objection which was relied upon to defeat this application is that there is a statement in the affidavit of the sheriff that this action was commenced against the sheriff to recover the sum of $4,000; and the case of Levy v. Dunn ( 39 App. Div. 605) is relied on as an authority against the granting of this application. The situation that appeared in that case, however, was substantially different, and a different question was presented. In that case two executions were delivered to the sheriff aggregating between $6,000 and $7,000, and before any steps were taken by the sheriff under them, two bonds were given to the sheriff to indemnify him in a penal sum specified aggregating $18,000. Under those executions the sheriff took property belonging to the plaintiff in that action, and which it was alleged was of the value of $42,500, and that fact was not denied. This court held that under such circumstances, as the proof was sufficient to show that the bonds were altogether insufficient as indemnity to the plaintiff, he would not be afforded an adequate remedy against a responsible person for the wrong done him if the sheriff was discharged from liability and the sureties substituted. In this case the sheriff acted under section 658 of the Code of Civil Procedure, where it is provided that if the sheriff's jury find the title of the goods or effects levied upon by the sheriff under an attachment to have been in the claimant at the time of the levy, the sheriff must forthwith deliver them to him or his agent, unless the plaintiff gives an undertaking with sufficient sureties to indemnify the sheriff for the detention thereof. If the undertaking is given the sheriff must detain the goods or effects, as the property of the defendant. Provision is then made for a notice to the claimant and the plaintiff in the attachment action of the giving of the undertaking, with a notice of the justification of the sureties thereon, and if the judge before whom such justification takes place should find the sureties sufficient, he is to allow the undertaking, and "thereupon the sheriff is released and discharged from all further liability, by reason of the taking and detention of the property seized."
The plaintiff in this action (the claimant) had notice of the giving of the undertaking and the amount specified therein. If this undertaking was not sufficient in amount to protect the plaintiff, he could have objected to the sufficiency of the undertaking before the justice before whom the same was approved. It does not appear that any such objection was made, but it does appear that the undertaking was approved. The sureties upon the bond are liable to the claimant for the total amount of the injury sustained by reason of the levy of the sheriff upon the claimant's property. ( Dyett v. Hyman, 129 N.Y. 357.) It is there said: "The liability of the defendants rests wholly upon their participation in the original wrong and their liability for its consequences incurred by reason of their complicity in the trespass. This, it is true, is evidenced by the bond of indemnity, which authorized the sheriff to consummate the original wrong by an unlawful sale and conversion of the plaintiff's property, but in no sense is the action upon the bond."
The liability of the sureties, therefore, depending not upon the bond and not being limited to the amount specified in the bond, the plaintiff is amply protected if he is confined to his action against them and the sheriff relieved from liability; and the sureties cannot complain if they are compelled to bear the burden of defending the action, as by their interference they have enabled the sheriff to commit the trespass, if one was committed, and by their obligation have agreed to indemnify him against all liability. The mere fact, therefore, that the plaintiff has commenced an action against the sheriff for a greater sum than that specified in the undertaking would seem to be no reason why the indemnitors, the real parties in interest, should not be substituted as defendants in place of the sheriff. The sureties had knowledge of the obligation that they assumed when they executed the bond, and they became liable for the entire amount of the damage sustained by the claimant in consequence of the retention of the specific property levied upon by the sheriff under the attachment; and the plaintiff cannot complain of the substitution of these defendants in place of the sheriff, as he had notice of the amount or the undertaking and an opportunity to examine the sureties to see that they were of sufficient responsibility to respond to any damage that he might sustain in consequence of the sheriff's holding the property as the property of the defendant in the attachment suit. In Levy v. Dunn ( supra) the bonds were given before the sheriff made the levy, and it was there alleged and not disputed that the sheriff had seized property of a value much in excess of that required by the execution under which he was acting; and the plaintiff in that case had no opportunity of examining the sureties and being heard upon their ability to respond to the extent of the value of the property taken.
I think, therefore, that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
VAN BRUNT, P.J., PATTERSON, O'BRIEN and McLAUGHLIN, JJ., concurred.
I concur in the reversal of this order. The present case differs altogether from that of Levy v. Dunn ( 39 App. Div. 605). In that case it was held that under its peculiar circumstances and the attitude in which the indemnitor stood to the sheriff, substitution should not be ordered because the plaintiff would not secure that complete and effective remedy to which he was entitled by reason of the wrongs alleged to have been perpetrated against him by the sheriff. There, both the plaintiff and the indemnitor objected to the substitution, the indemnitor insisting that it was not an original trespasser liable with the sheriff for the sheriff's acts, those acts being in excess of the sheriff's lawful right and being wanton in their character. The indemnitor's position was that as between itself and the sheriff the liability was solely upon the bond; that inasmuch as that bond was not given against specific acts, but was only for general indemnity, in an action between the sheriff and the indemnitor, the recovery would be limited to the amount of the bond, if any recovery could be had at all; that the sheriff could not of his own motion shift the whole responsibility for all his acts upon the indemnitor; that on the substitution of the indemnitor, no question could be litigated between the plaintiff and it, except such defense as the sheriff himself would have to the cause of action asserted by the plaintiff; that thus the indemnitor would be deprived of its defense and would be visited with a liability which it never incurred and upon a relation to the sheriff's acts which it did not sustain, either as matter of law or fact. The plaintiff Levy contended that he as a stranger to all matters antecedent to the sheriff's trespass could not be embarrassed in the pursuit of his remedy by all these matters that were extraneous to his cause of action and foreign to the enforcement of his rights. The whole point of the case of Levy v. Dunn was that there being this grave question of the liability of the indemnitor as an original tort feasor, and the bond which he gave to the sheriff being utterly insufficient to protect him, if for any reason it should be held that the liability was limited to the extent of the bond, a substitution should not be ordered. The questions arising in the Levy case are not in this. There is nothing in that case which indicates that the original liability of an indemnitor to a party injured by the sheriff's trespass is upon the bond alone.
O'BRIEN and McLAUGHLIN, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted with ten dollars costs.