Berg v. Grant — 18 Abb. N. Cas. 449

Majority

p. 449

BERG v. GRANT.

N. Y. Supreme Court, First District, Chambers;

March, 1887.

Headnote

1. Substitution, of indemnitors of sheriff as defendants.] The provisions of sections 1421-1427 of the Code of Civil Procedure, authorizing substitution of indemnitors as defendants in place of the sheriff, are innovations in the law, and so seriously modify the ordinary common law rule of liability as to require a very clear case to be made out before the court would direct such substitution.

2. The same.] So held, denying substitution in an action by an assignee for benefit of creditors against a sheriff for conversion of property levied upon and detained by him by virtue of several warrants of attachment against the assignor’s property, obtained by different creditors of the assignor.

p. 450

Motion for substitution of indemnitors as parties defendant.

This action was brought by Jacob P. Berg, as the assignee of Arthur Beeves for the benefit of creditors, against Hugh J. Grant, for conversion of property, seized by defendant, as sheriff, under warrants of - attachment against the property of said Beeves.

It appeared that there were three attachments levied upon the property in question, that of the moving parties being third in order of time; that upon motions to vacate the two prior attachments, the attachments had been sustained, but that the third attachment was vacated upon motion, and that the order vacating it had been affirmed on appeal. The seizure of the property was made under the first- two warrants. The bond of indemnity was delivered to the sheriff prior to the commencement of this action.

William JB. TulUs, for the indemnitors and the motion.

George W. GaTlmger, for the plaintiff, opposed.

The sections of the Code of Civil Procedure^[1] which authorize the substitution of indemnitors- as defendants in place of the sheriff are innovations in the law, and so seriously modify the ordinary common law rule of liability as to require a very clear case to be made out before the court would direct such substitution. I am not prepared to say that the case of Hayes v. Davidson ( 98 N. Y. 19^[2] ), is clearly in point as an authority against the granting of this motion ; but the general tenor of the opinion of Buger, C. J., in that case, is adverse to the granting of motions of this character. The trespasser is the person liable, and direct recourse as against him should be the ordinary remedy. It is very well said by the court of appeals that “ the act is

* §§ 1421-1427.

† † Reversing 34 Hun, 243 .

p. 451

one of doubtful propriety, and the cases must be rare when any useful purpose can be served by depriving a party of his lawful remedy against the individual who injured him, and compelling him to litigate his demands with persons who were not apparently participants in the wrong out of which the action arose, and as to whose liabilities and their extent many embarassiug questions may arise.”

The complaint in this action is in trover against the sheriff. It was from his act that the plaintiff suffered injury and damage, and not from the immediate act of the indemnitors, although they may have set him in motion, and are therefore responsible with him ; but I think the strict legal rule of liability should be preserved, and in the exercise of that discretion which is allowed to the courts in like cases, I think it proper to deny this motion.

No costs are allowed.

Cases cited

Hayes v. Davidson 98 N. Y. 19 N.Y. 1885-01-20 p. 450