Jakobi v. Gorman — 50 N.Y. St. Rep. 202

Majority

p. 202

Leo C. Jakobi et al., App’lts, v. John J. Gorman, Sheriff, Resp’t.^[1]

(New York Common Pleas, General Term,

Filed January 16, 1893.)

Headnote

Sheriffs—Substitution of indemnitors as defendants.

After judgment by default against a sheriff in an action of replevin for goods levied upon by him, the indemnitors of the sheriff applied for and were allowed to be substituted in place of the sheriff. Held, that there was no abuse of discretion in granting the application, as the indemnitors were the parties really interested in the defense of the action, and should be allowed an opportunity to make good such defense.

Appeal from order of the general term of the city court of New York, affirming order substituting indemnitors as parties defendant in place of the sheriff.

Abraham Gruber, for app’lts ;

John B. Brodsky, for resp’t.

Upon a judgment in an action by Skieck against Schmidt, Gorman, as sheriff, levied on property in the possession )f Schmidt; the plaintiffs herein made claim to the property, and Drought replevin for its recovery ; and thereupon Schieck, Offer-nan and Selje executed a bond of indemnity to the sheriff. The notion is by these indemnitors to bO substituted as defendants in Diace of Gorman, the sheriff. An order of substitution at special ;erm was affirmed by the general term of the city court, and from ;hat order of affirmance an appeal is taken to us.

The order of substitution was entered the 20th September, 1892. But, the indemnitors had noticed and withdrawn a previous appliiation for substitution, namely, on the 12th October, 1891. It ’urther appears by the record, that, on the 17th June, 1892, before my application for substitution, judgment by default had gone against the sheriff-defendant, and execution thereon issued ; that she indemnitors had no knowledge of the default, judgment or ixecution until late in the evening, “ when they were notified by nail that judgment had been entered, and that unless the same vas adjusted the sheriff would pay the same on the 17th.” iSTo explanation is given of the withdrawal of the 12th October notion for substitution; but the obvious inference is that it was Decause of the indemnitors’ reliance upon the good faith and diligence of the sheriff in defending the action. Now that their conidence is disappointed, they seek an opportunity of protecting heir rights.

Being amply indemnified, the sheriff is in no peril from the ación ; and the entire loss, if any there be, must be borne by the ndemnitors. Their answer discloses a valid defense, and, in com-non justice, they should have their day in court to make good ;hat defense, especially since no question is made as to their sufficiency to respond in damages to the plaintiffs.

Upon the facts before us we are unable to say that, in granting she order of substitution, the court below failed to exercise a fair liscretion. Hayes v. Davidson, 98 N. Y., 22 .

An order of the city court opening a default is not appealable so us. Keller v. Feldmann, 49 St. Rep., 718 . But, appellants irge that the default of the sheriff was unexcused and inexcusable ; and this very fact, namely, that the default was willful, apDears to us as sufficient reason for permitting the parties who were rot i-esponsible for it, and who, alone, are afflicted by its consequences, to come in and make defense.

Again, the appellants contend that in opening the default the jourt below committed legal error in this: that the sheriff, then she only defendant, as dominus litus, alone had the carriage of the litigation; and that the indemnitors, strangers to the action, had ao right to control its conduct The answer is, that the indemnitors were the parties really iirterested in the defense; that the law allows them to .intervene for the protection of their rights; and that the same order which opened the default admitted them as parties to the action.

Order affirmed, with costs.

Bookstaver and Bischoff, JJ., concur.