Fleig v. Gorman — 20 N.Y.S. 615

Majority

p. 615

Fleig v. Gorman, Sheriff.

(City Court of New York, General Term.

October 24, 1892.)

Headnote

Sheriffs—Substitution of Indemnitors.

Code Civil Proo. § 1421, authorizing the substitution of indemnitors in place of the sheriff, was intended for his protection, and an application therefor by him may be granted without requiring him to furnish additional security to answer the final result of the litigation, though such security might have been required of the indemnitors if they had made the application.

Appeal from special term.

Action by Reuben Fleig against John J. Gorman, sheriff. From an order substituting indemnitors in place of the sheriff, plaintiff appeals. Affirmed.

p. 616

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

Joseph Kohler, for appellant. William E. Stillings, for respondent.

The provisions of section 1421 of the Code, authorizing the substitution of indemnitors in place of the sheriff, were evidently intended for the protection of that official, and to enable him to let himself out of a litigation concerning which he had no personal interest, and in reference to which he had merely performed an official duty according to the requirements of the law. The court below, in furtherance of the legislative intent, granted the application, upon terms which seemed to it just. The judicial discretion was not abused, and there is nothing in the record which requires us to change the result arrived at. If the indemnitors had made the application, their pecuniary condition at the time might have required the court below to exact from them additional security as a condition for granting the relief, (Code, § 1423;) but the application was not made by the indemnitors, but by the sheriff, on his own behalf and for his own protection. To require the sheriff to furnish additional security to answer the final result of the litigation would defeat the very object of the enactment, for it would keep him responsible for the consequences of the acts of others, and their mode of defense, without any personal supervision over the management of the litigation. The act intended to let the sheriff out of the litigation, leaving the parties in interest to settle the contention in their own way. The order made was authorized by the Code provision, and, as there was no abuse of power or discretion, it must be affirmed, with costs.