Terhune v. Dunn

Headnote

Action against Sheriff—Substitution of Indemnitors.

In an action of replevin brought against a sheriff to recover property levied upon by him under an execution, a motion to substitute indemnitorswill lie, under Code Civ. Proc. § 1421, although their undertaking was not given until after the action of replevin was begun.

Appeal from special term.

Action by William H. Terhunq against Thomas J. Dunn, sheriff. From an order of substitution, plaintiff appeals.

Affirmed.

This is an appeal from an order substituting the indemnitors of the sheriff in his place as defendants herein, under section 1421 of the Code of Civil. Procedure. On or about January 3, 1898, two executions were issued against the property of Alfred Ebenstein in favor of Louis Levy,—one for the sum of $1,027.29, and the other for $1,527.50. The sheriff levied, under and by virtue of said executions, upon certain property, some of which was after-wards claimed by the plaintiff herein; and this action in replevin to recover possession of some of said property so levied upon was commenced. This-defendant demanded a bond as against said claim, and said action and 'all damages for the taking of said property,.and costs, counsel fees, and expenses; that thereafter such bond was given in the sum of $2,000, with Sanders B. Altmayer and C. W. Levy as sureties thereon. A copy of said bond was-served upon the attorney for the claimant (the plaintiff in this action), with notice of justification thereof, and' said bond was duly approved by one of the justices of this court, and filed with the clerk of said court. This action was brought to recover possession of some of the property so levied upon and claimed as aforesaid, and the value of said property is stated, to be $400. Thereafter a motion was made to substitute the indemnitors, Sanders B. Altmayer and O. W. Levy, as defendants herein; and an order was entered substituting said indemnitors. It is from the order substituting said indemnitorsthat this appeal is taken.