Boessneck v. Bab — 58 N.Y.S. 849

Majority

p. 849

(27 Misc. Rep. 379.)

BOESSNECK et al. v. BAB.

(Supreme Court, Special Term, New York County.

May, 1899.)

Headnote

Replevin—Right of Surety to Defend.

A surety has the right to defend an action of replevin in order to protect himself from liability on an undertaking given to reclaim chattels which have been replevied. j

Motion of National Surety Company for leave to conyi in and defend an action of replevin by Hugo Boessneck and other/ against Jacob Bab, in which it had become surety upon an under/ iking, given to reclaim chattels which had been replevied.

Motion f ranted.

Myers, Goldsmith & Bronner, for the motion. /

Epstein Bros. (Maurice S. Hyman, of counsel), ov posed

It was held by the general tern/ of this court in this department in Jewett v. Crane, 35 Barb. 208 , / hat sureties upon an undertaking executed by th.e defendants on / m attachment in order to procure the discharge of the attachment / aay be allowed for their own protection to defend an action brought against their principal. That case was followed in Hoffman v. Steinau, 34 Hun, 239 , in which case an application was made by a surety upon an undertaking in replevin for leave to prosecute the action brought by his principal after the latter-had abandoned it. It was held in this last case that a surety had a right to appear in the action, and prosecute the same on behalf of the plaintiff, in order to protect himself from liability upon his undertaking. I cannot see why, if a surety has the right to prosecute an action in order to protect himself from

p. 850

liability upon his undertaking, he should not have the same right to defend an action in order to protect himself from liability on the undertaking.

Motion granted.

Cases cited

Jewett v. Crane 35 Barb. 208 N.Y. Sup. Ct. 1861-09-16 p. 849