Newcombe v. Irving National Bank — 4 N.Y.S. 37

Majority

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Newcombe v. Irving Nat. Bank.

(Supreme Court, General Term, First Department.

January 28, 1889.)

Headnote

Execution—Relief against—Injunction—Adequate Remedy at Law.

By the amendment of Laws N. Y, 1888, c. 98, to Code Civil Proc. § 1419, the court is bound to approve an undertaking indemnifying the sheriff from liability for a levy, etc., if the indemnitors are responsible, and thereupon the sheriff is discharged from all liability by reason thereof. Held, that where several levies are made for which there are several indemnitors, and where, consequently, it is uncertain for what property each indemnitor is liable, there is no certain and adequate remedy at law for the levy, if wrongful, and a creditor, on sufficient security being given, should be restrained from enforcing his execution until the rights of the parties are determined.

Appeal from special term New York county.

Action by Bichard S. Newcombe, assignee for benefit of creditors of Isaac J. Seligman and others, against the Irving National Bank. The complaint alleges that defendant has received from plaintiff’s assignors three confessions of judgments, and, alleging the assignment to be void, has issued executions thereon with instructions to collect them out of the assigned estate, and has indemnified the sheriff, that if the assigned estate is sold plaintiff cannot recover adequate damages against the sheriff and his indemnitors, if it is determined that he is entitled to hold the assigned estate; that other judgment creditors have also indemnified the sheriff against plaintiff’s claim; and prays that on making a deposit subject to final determination as to the validity of the assignment defendant may be restrained from enforcing the executions. The affidavit of .one of plaintiff’s attorneys states that since*defendant gave the indemnity bonds to the sheriff about 40 judgment creditors have also indemnified the sheriff, and have issued executions against the property of plaintiff’s assignors; that as he is informed and believes levies were made thereunder befqre levy was made under defendant’s execution; that numerous sureties are on all these separate indemnity bonds; and that, if plaintiff should be compelled to sue for damages for wrongful levy, it would be impossible to determine which set of indemnitors would be liable, or in what proportion; and that great multiplicity of action must ensue, and his remedy would be inadequate. A preliminary injunction was granted, whereby defendant was restrained from selling the property under the executions, on plaintiff’s giving a sufficient undertaking to indemnify it. Defendant appeals. The statute in question is Code Civil Proc. N. Y. § 1419 et seq., and the amendment by Laws 1888, c. 98.

Argued before Van Brunt, P. J., and Daniels and Bartlett, JJ.

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Stern & Myers, for appellant. Charles Donohue, for respondent.

The order appealed from is certainly a novel one, but. the circumstances under which it was applied for are equally novel. The rule is well established that a court of equity will not interfere by injunction where an adequate remedy at law exists; and in cases of trespass by the sheriff prior to this new legislation, (whereby one man is made responsible for the trespass of another,) the person against whom the trespass was committed had an ample remedy at law, because he could maintain his action against the sheriff for such trespass, and recover the damages which he had sustained. If such trespass had been directed by any other person, as by an indemnitor, he had the right also to join in such action such indemnitor. Under this condition of the law there was no uncertainty in regard to the remedy of the party injured. He had a complete and effectual one against the sheriff and his aiders and abettors. When the legislation took effect which authorized the court to substitute indemnitors in the place of the sheriff, certain discretion existed in the court, and, if the rights of the parties injured would be in any wise impaired by such substitution, the court had the right to refuse the same; and it has been held under this legislation that where there were a variety of indemnitors, and the sheriff was proceeding under a variety of executions, this was-a sufficient ground for the refusal of substitution, because it was impossible for the injured party to know as to what part of the trespass each indemnitor was liable, and, as such indemnitor was not liable for the whole trespass, it made his remedy uncertain, and as a consequence the sheriff would not be relieved, but would remain liable for the w'hole trespass, as he had been previous to this legislation. By the amendment of 1888 no discretion is vested in the court. If the judge finds upon examination that the indemnitors are responsible, he is bound to indorse his approval upon the undertaking, and thereupon the sheriff is released and discharged from all further liability by reason of the levy, detention, and sale of the property seized. This legislation produced a state of things which is entirely new, and has never existed before. The party whose property is seized under various executions, where the sheriff has been indemnified by various indemnitors, cannot present to the court the fact that he cannot know whom to proceed against for this levy as a reason why substitution should be refused, because the judge is bound to approve the undertaking if the sureties are sufficient; and the sheriff, as matter of law, thereupon becomes discharged, and the person whose property has been seized under the execution must thereafter look to the indemnitors for satisfaction for the trespass committed by the sheriff. As has already been suggested, each indemnitor is not liable for the whole trespass unless all the goods were taken under the execution which he has indemnified against, and the sheriff may make successive levies under the different executions, and the indemnitors under each execution are only liable for the levy made under that particular execution. Under these circumstances, unless the owner of the property is present at the time of the levy, and is informed by the sheriff as to what he levies upon under each execution, and he takes pains to inform himself upon the subject, it is impossible for him to tell as to- what property each indemnitor is liable; and then, when he comes to try his action at law, it depends upon his testimony, where perhaps he is contradicted by the person making the levy under the execution, and he is thereby thrown into a sea of uncertainty as to whom he is to look for satisfaction. An action brought under such circumstances against divers individuals would certainly be a very inadequate remedy; and it is because of the fact that by his action for damages the owner of the property seized under these circumstances cannot secure adequate and certain relief that the aid of a court of equity is asked. As has already been stated, it is an unusual application, and the circumstances under whiehit is made are equally novel. The debtor, under circumstances such as

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these, has no adequate remedy at law, and it is necessary that this particular proceeding should be entertained, by a court of equity because of the change in the relations between the owners of property and the persons who trespass upon them wrought by this legislation. We are of opinion, therefore, that the plaintiff was entitled, in view of the fact that his property had been levied upon under different executions upon which there were various indemnitors, and in view of the fact that it was impossible to toll with any degree of certainty what part of the property was seized under each particular execution, to the order granted, whereby the plaintiff’s rights might be fixed, having before the court all the parties who claimed an interest in the property by reason of the levies made by the sheriff. The order should accordingly be affirmed, with $10 costs and disbursements. All concur.