Cohen v. Gorman — 55 N.Y. St. Rep. 217

Majority

p. 217

Sarah Cohen, Resp’t, v. John J. Gorman, Sheriff, Def't.

(New York Superior Court, General Term,

Filed October 24, 1893.)

Headnote

Sheriffs—Default—Indemnitors.

Where a judgment by default in an action against a sheriff was not em?

p. 218

tered until eight months after tile commencement of the action, and has been paid and satisfied, the default will not be opened on application of the indemnitors where there is no proof of collusion, or disclosure of the nature of the proposed defense.

Appeal from order denying motion of the sureties on an indemnity bond given to defendant as sheriff to vacate a judgment recovered against him by default, and substitute them as defendants.

Goldsmith & Doherty, for app’lts; W. E. Stillings, for resp’t.

This is an appeal from an order denying a motion made by Callman, Rouse and Samuel Barnett, sureties on an indemnity bond given to the defendant as sheriff, to set aside a judgment taken against defendant by default, and to substitute the appellants as defendants, and to permit them to come in and defend. The action was commenced in October, 1891, and resulted in a judgment against the defendant iii June, 1892. The judgment was paid by the defendant and satisfied by the plaintiff of record before the appellants gave notice of motion to bp substituted. In view of these facts, and there being no proof of collusion, and no disclosure of the nature of the proposed defense, the motion was properly denied. Jakobi v. Gorman, 50 St. Rep., 202 , is clearly distinguishable.

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

Gtldersleeve, J., concurs.