Majority
p. 490(19 Misc. Rep. 349.) MANDEL v. GORMAN et al. (City Court of New York, General Term. February 3, 1897.)
Headnote
Parties—Substitution—Conditional Okdeb.A sheriff may, as a matter of right, substitute his indemnitors in an action for wrongful attachment; and therefore the condition in an order granting the substitution, “that the sureties file a bond,” is void.
Appeal from trial term.
Action by Conrad Mandel against Amelia Gorman, as executrix of John G. Gorman, deceased. From an order requiring indemnitors of a sheriff to file a bond before their substitution, defendant appeals. Modified.
This action was commenced by the plaintiff on or about the 17th day of April, 1893, against the defendant Heusner and John J. Gorman, as sheriff of the county of New York, to recover damages for a wrongful levy and sale of the plaintiff’s goods and chattels under an alleged attachment. On or about the 26th day of June, 1893, a motion was made by and in behalf of the then defendant John J.
p. 491Argued before FITZSIMONS, MCCARTHY, and CONLAN, JJ.
Gorman to substitute the indemnitors upon the bond given by the said Heusner, as principal, and .said indemnitors, as sureties, to the said sheriff. Mr. Justice Newburger granted the application “upon condition that the sureties file a bond conditioned for the payment of any judgment the plaintiff may recover.” No order was then entered upon this decision. Subsequently the defendant John J. Gorman died, and upon the plaintiff’s motion the defendant Amelia Gorman, as sole executrix under the last will and testament of the said John J. Gorman, deceased, was substituted as defendant in the place of the said deceased. On or . about the 31st day gf October the motion was renewed on behalf of the defendant Amelia Gorman to'substitute the said indemnitors as defendants in her stead. This motion was denied by Mr. Chief Justice Van Wyck, and an order was entered thereon on the said 31st day of October, 1896. Thereafter a motion was made at special term of this court, on behalf of Amelia Gorman, for permission to enter an order upon the decision of Mr. Justice Newburger. This motion was granted, and such order was entered on the 18th day of November, 1896, by the attorney for the defendant Amelia Gorman; and from so much of said order as provides that the substitution be granted upon the sureties filing a bond conditioned for the payment of any judgment that may be recovered herein, the said defendant Gorman now appeals.
Louis Cohen, for appellant.
Mashbir & Cukor, for respondent.
We think that the condition, in the order appealed from, requiring an additional bond from the indemnitors before their substitution as the defendants would be granted, in the place of the sheriff, was in excess of the power of the court. It seems to us that, as a matter of right, the sheriff was entitled to have the indemnitors substituted in his stead, as defendants, without the condition referred to, upon his application to have that done.
The order appealed from must be modified by striking therefrom the words, "upon their filing a bond conditioned for the payment of any judgment recovered in this action”; and as so modified it is affirmed, without costs.