McBride v. Tappen — 31 N.Y. St. Rep. 477

Majority

p. 477

James McBride, App’lt, v. Shepard Tappen, as Sheriff, Resp’t.

(Supreme Court, General Term, Third Department,

Filed May 26, 1890.)

Headnote

Sheriffs—Indemnitors, liability of.

The complaint charged defendant by his deputy with seizing under an execution against others property which he knew belonged to plaintiff, and also with an excessive levy and with a sale of the property at a nominal sum. The sheriff tvas indemnified. Upon his application the indemnitors were substituted under Code, § 1421, as amended in 1887. The indemnitors consented and did not appeal from the order of substitution, which also required them to give security to plaintiff in excess of the amount of his claim. Code Civ. Pro., § 1428. Held, thatjilaintiff was protected and that the indemnitors by reason of the further security and their consent would be liable for the abuse of process and excessive levy by the sheriff, if proved.

Appeal by plaintiff from an order substituting the indemnitors of the sheriff as parties in place of the latter.

Action for conversion of plaintiff’s property under an execution against others, and for an excessive levy. Appellant claims that the bond given by the indemnitors did not cover the acts complained of.

I. G. Ormsby, for app’lt; Orín Gambell, for resp’t.

It was held in Hein v. Davidson, 96 N. Y., 175 , that where, under an attachment against one Rice, the sheriff had levied on property which the plaintiff Hein claimed to belong to him, the indemnitors of the sheriff might be substituted for the sheriff in the action brought against him and he might be discharged. It was held that the act permitting this was constitutional. The effect of this decision seems to be that one‘who commits a trespass on property may be permitted by the legislature to escape all liability for his act on substituting some responsible defendant. We are, of course, bound by the decision, though we cannot agree with the reasoning.

The present case presents another question still. The plaintiff sues the defendant not only for taking the plaintiff’s property under an execution against other persons, but also for making a levy on the plaintiff’s property which was grossly excessive, and for illegally and wrongfully selling plaintiff’s property to an amount more than sufficient to satisfy said execution.

The learned justice before whom the motion was made said that if the substitution of the indemnitors rested in the discretion of the court, he should refuse it. But he thought that § 1421 was now mandatory.

The plaintiff urges on this appeal that the right of substitution under this section can only apply to a case in which the indemnitors would be liable on their original bond, if the action should have proceeded against the sheriff and a recovery should have been had against him. He further urges that for abuse of the jirocess, by excessive levy and the like, the indemnitors, would not be liable, and therefore should not be substituted in such a case; and that it would be contrary to principle to hold the indemnitors liable for abuse of process by the sheriff in making an excessive levy and the like; and that hence, if they were substi

p. 478

tuted, the plaintiff could not recover against him. for such abuse of process.

It is not necessary to decide how this would be in case the indemnitors objected to the substitution. In the present case the indemnitors are willing and desirous to be substituted ; they did not appeal from the order; and they oppose the reversal of it. Furthermore the order required them to give a further bond conditioned to pay any judgment the plaintiff may obtain in the action. It seems to us therefore, that on this bond and on the affirmative action of the indemnitors in favor of the substitution it will not lie with them to say that they are not liable for every cause of action set up in the complaint

The order should be affirmed, with ten dollars costs and printing disbursements.

Landon and Maypiam, JJ., concur.