Flack v. Thaxter — 14 N.Y.S. 366

Majority

p. 366

Flack, Sheriff, v. Thaxter et al.

(City Court of New York, General Term.

May 8, 1891.

Headnote

Indemnity—Liability or Indemnitors.

The failure of a sheriff to insure property seized by him under process, and held ■ pending the settlement of a disputed claim thereto, will not discharge his indemni- ' tors, where he has been required to pay the value of such property by reason of its destruction by fire.

Appeal from trial term.

Action by James A. Flack, late sheriff, etc., against Samuel Thaxter and ■others. Judgment was entered on a verdict for plaintiff, and defendants appeal.

Argued before Ehrlich, C. J., and Fitzsimons and McCarthy, JJ.

Beltz & Large, for appellants. David, Tim, for respondent.

The action is on bonds of indemnity to the sheriff, and by •the judgment herein the sheriff recovers the amount he was obliged to pay by reason of doing the acts he was required to do and was indemnified against. There was no proof of negligence on the part°of the plaintiff, or that he of .his own volition did or omitted to do any act, whereby the damages were •created or increased. He was under no obligation (without request) to insure the property lost by fire;’ and, there being a disputed claim of title to the property seized, it could not be safely determined whether any part of the prop■erty ought to be returned to the defendant in the original action or to the claimants of it. Ho injustice has been done to the defendants. The judgment herein hereby indemnifies the sheriff, and that is what the defendants ■agreed to do. We find no error. Judgment affirmed, with costs. All concur.