Shaw v. Dunn — 107 N.Y.S. 777

Majority

p. 777

SHAW v. DUNN.

(Supreme Court, Appellate Division, First Department.

December 20, 1907.)

Headnote

1. Attachment—Claims of Third Party—Findings of Sheriff’s Jury.

There is no provision of law allowing a review by motion or otherwise of the action of a sheriff’s jury impaneled to try the validity of claim of a third person to property attached.

2. Same—Bond by Plaintiff.

Under Code Civ. Proc. §§ 657, 658, authorizing a jury to try the claim of a third person to property attached, and permitting the sheriff to deliver the property to the claimant unless an indemnifying undertaking is given, plaintiff in attachment can, by giving a satisfactory undertaking, recover the property, though he cannot review the finding of the jury.

Appeal from Superior Court, New York County.

Action by James G. Shaw against B. Sherwood Dunn. Appeal by defendant from a portion of an order. Reversed.

Argued before PATTERSON, P. J., and INGRAHAM, Mc-EAUGHEIN, CLARICE, and HOUGHTON, JJ.

John Henry Hammond, for appellant.

The plaintiff obtained an attachment and delivered the same to the sheriff of New York county, who levied upon certain railroad bonds alleged to belong to the defendant. A third party made claim to the bonds, and thereupon the sheriff impaneled a jury to try the validity of such claim. By their verdict the jury found that the bonds belonged to the claimant at the time of the levy, and fixed their value. The plaintiff claimed that the inquisition was improperly conducted, and moved at Special Term to set aside the verdict of the jury, and to enjoin the sheriff from releasing the bonds from the levy and from delivering them to the claimant. An order was made restraining the sheriff from such delivery on condition that the plaintiff execute and deliver to him a surety company indemnifying undertaking in the sum of $45,250.

The motion should have been denied. There is no provision of law allowing a review, by motion or otherwise, of the action of a sheriff’s jury impaneled to try the validity of a claim of a third person to property attached. Cohen v. Climax Cycle Co., 19 App. Div. 158 , 46 N. Y. Supp. 4 . Such a jury is permitted by sections 657 and 658 of the Code of Civil Procedure to be impaneled to try such a claim for the purpose of enabling the sheriff to demand from the plaintiff indemnity against the claim of a third party. Unless such indemnifying undertaking be given, the sheriff is permitted to deliver the property to the claimant; and, if it be given, he must retain the property

p. 778

under his levy. Section 658 prescribes the kind of undertaking, the kind of sureties, and how they shall justify, and before whom and what notice shall be given. The plaintiff could have given an undertaking with two sufficient sureties who satisfactorily justified, and it was improper to confine him to an expensive surety company bond, even if the order was otherwise proper. The proceeding is plainly stated in the sections of the Code referred to, and complication has arisen from the plaintiff mistaking his right to move to set aside the verdict of the sheriff’s jury. The better way to clear up the matter is to reverse the order, and thus remit the plaintiff to the practice prescribed by the Code.

The order should be reversed, and the motion denied, without costs. All concur.

Cases cited

Cohen v. Climax Cycle Co. 19 App. Div. 158 N.Y. App. Div. 1897-06-11 p. 777