Note on Substitution of Sheriff's Indemnitors.

c. 182), the right to have his sureties so substituted was by amendment of the statute extended to the officer. Code Civ. Pro. 1421. This amendment has no bearing upon the construction of the provision of section 1711.

Opinion by BRADLEY, J. All concurred.

Order affirmed, with ten dollars costs and disburse

ments.

Hugo Hirsh, for the sheriff, appellant.

Josiah T. Marean, for the plaintiffs, respondents.

NOTE ON SUBSTITUTION OF SHERIFF'S INDEMNITORS.

The case in the text raises a new point as to the substitution of the sheriff's indemnitors as defendants in actions brought against that officer for a levy on property where such property is claimed by others than those against whom the process runs. From the cases cited hereafter it will be seen that prior to the amendments of Code Civ. Pro., § 1421, 1427, contained in L. 1887, chaps. 182, 453, it was held that such a substitution could only be made upon the application of the indemnitors, and that it could not be made at all where there were several levies under successive attachments, executions, etc.

But after the amendment of r887, it was decided in cases of attachment and executions that such substitution could be had upon the application of the sheriff or of the indemnitors, and the fact that there were successive levies did not prevent the substitution. The court now holds that so far as replevin is concerned the amendment of 1887 does not apply, and that the application for substitution in such a case must be made by the indemnitors.

In the leading case of Hein v. Davidson (96 N. Y. 175), cited in the text, the court apparently did not look with approval upon the legislation allowing this procedure, but notwithstanding held the act to be constitutional, and that it was the legal right of such indemnitors, upon their own motion, to be made defendants in the place of the sheriff.

Note on Substitution of Sheriff's Indemnitors.

In McBride v. Tappen, (10 Supp. 137; S. C., 31 St. R. 477) the court frankly criticised the decision of Hein v. Davidson (supra), but felt compelled to follow it. In the McBride case the seizure had been made under an execution. The plaintiff also sued the sheriff for an abuse of process for seizing more property than was necessary to satisfy the execution. The substitution was made on the motion of the sheriff and the indemnitors did not appeal, but appeared and argued in support of the order. The court said that had it not been for the consent of the indemnitors to assume any liability of the sheriff for the alleged abuse of process another question might have been presented.

Later, however, it was held that the liability of the indemnitors was not limited to the amount in which they would be held in an action by the sheriff on the bond; their liability rests wholly upon their implied participation in the original trespass. Dyett v. Hyman, 129 N. Y. 351; Ebenreiter v. Dahlman, 19 Misc. 9.

The indemnitors are liable for the original trespass committed by the sheriff as principals. Those thus connected with the original wrong are jointly and severally liable with the sheriff, and it is no defense, in an action by the owner of the property against one or more of the wrongdoers that others were not joined as defendants who are also liable. Dyett v. Hyman (supra).

Indemnitors in a bond given to the sheriff are principals and severally liable with him for the wrong committed. Jacobi v. Gorman, 1 Misc. 222. And where indemnitors are allowed to intervene it is not necessary for the plaintiff to have any cause of action against them; by giving the bond and being substituted as defendants they make themselves liable for the original trespass. Pool v. Ellison, 30 St. R. 135; Kerner v. Boardman, 14 Supp. 787.

In Hayes v. Davidson (98 N. Y. 19; rev'g 34 Hun, 243) it was held that the indemnitors could not be substituted unless it appeared by the moving papers that they became such before the commencement of the action; but the effect of that decision was annulled by the amendment of 1887, which provided that the application for substitution could be made before or after the commencement of the suit. It was also decided in that case that where there had been several seizures as to only a part of which indemnity had been furnished, and only a portion of the indemnitors appiied for substitution, the order could not be granted. That ruling also seems to have been annulled by the amendment of 1887. Corn v. Tamsen, 16 Misc. 670.

Note on Substitution of Sheriff's Indemnitors.

In Isaacs v. Cohen (2 N. Y. Ann. Cas. 99; s. c., 86 Hun, 119) there is a dictum to the effect that if the sheriff moved to substitute all his indemnitors the court was authorized to divide the action and limit each action to the part of the property for which each class of indemnitors was responsible. But the court further said that if this is not requested and done and the substitution made is general and the whole body of indemnitors are treated as responsible for the entire trespass complained of in the original action. against the sheriff, the action cannot thereafter be segregated. The principal question involved in that case was one of costs, the court holding, in effect, that where the substitution was general as in that case only one bill of costs could be allowed if the plaintiff in the action against the sheriff was defeated.

In Carter v. Bowe (47 Hun, 628), there had been several attachments and seizures and a number of indemnitors. The plaintiff claiming the property had sued the sheriff and after two trials and when the case was on the day calendar for the third time the indemnitors on one of the bonds given to the sheriff, moved to have the action divided and to be substituted as defendants in place of the sheriff, so far as the latter was liable for the portion of the property seized upon the attachment in which the moving parties became indemnitors. The court held that although the delay in moving was sufficient reason for denying the motion, Code Civ. Pro. §§ 1421-1427 did not empower the court to split up the action under such circumstances.

The last mentioned case was decided after the ainendments of 1887 (L. 1887, chaps. 182, 453), providing for a substitution where there were successive attachments and the court discussed the amendments saying: "But they will not be required to be so far enlarged and extended as to include a case of this description, to which they could not be applied without danger of subjecting the plaintiff in the action to very great injustice. To divide her action in the manner directed by the order would be to subject her to a greater state of confusion and uncertainty in the determination of it, than the law has either provided for or contemplated." The court places its decision mainly on the ground that it was not clearly shown what part of the property seized by the sheriff was affected by the bond given or the indemnitors who asked to be substituted.

It was held, however, in Corn v. Tamsen, (16 Misc. 670 ; S. C., 25 Civ. Pro. R. 129; 39 Supp. 129), that since the amendment of 1887 there could be a substitution of

Manda v. Etienne.

the sheriff's indemnitors although there were successive levies, where only the first execution was levied on the goods, the subsequent ones being levied on a possible excess of proceeds; but that only the indemnitors under the first levy should be substituted. The court cited Carter v. Bowe (supra) as an authority for its decision.

As a general rule the indemnitors have an absolute right to a substitution in attachment cases and it is not within the discretion of the court to deny a motion for substitution. Cantor v. Grant, 23 Abb. N. C. 424; S. C., ΙΟ Supp. 223.

Where the application for a substitution is made by the sheriff, notice must be given to the indemnitors or their attorneys, as well as to the plaintiff's attorney. Hero Fruit Jar Co. v. Grant, 11 Supp. 28; s. c., 32 St. R. 209.

MANDA v. ETIENNE.

Supreme Court, First Department, Appellate Division; January, 1897.

1. Attachment; amount of undertaking by plaintiff; increase.] Under Code Civ. Pro. § 682, as well as by virtue of its inherent power to regulate and control provisional remedies, the court may, upon the application of the defendant in attachment, require the plaintiff to give additional security upon the warrant of attachment.*

* The power of the court to protect the defendant whose property is attached upon an undertaking insufficient in amount by requiring an increase in the security seems too clear for serious contention, in view of the provisions of section 682 of the Code. This provides that "the defendant, or a person who has acquired a lien upon, or interest in, his property, after it was attached, may, at any time before the actual application of the attached property, or the proceeds thereof, to the payment of a judgment recovered in the action, apply to increase the security, given by the plaintiff."

But although the amount may be thus increased, there seems to be no provision for ascertaining by exception to the sureties upon the undertaking on attachment whether the sureties are in fact sufficient. Under Rule 4 of the General Rules of Practice, the justice.

VOL. IV.-4

Manda v. Etienne.

2. The same; unliquidated damages claimed.] Where plaintiff's original undertaking on attachment against a non-resident was for $300, and the plaintiff claimed $20,000 damages for alleged breach of a vendor's contract of sale, claiming large prospective profits and speculative and unliquidated damages,-Held, that the court properly increased the security to $2,500, and that the court might properly require security to the full value of the property attached.

must require the sureties to justify when he grants the warrant, but this affords only the formal affidavit of qualification provided for by the general provisions of section 812. On the other hand, if the defendant gives an undertaking to discharge the attachment, the plaintiff may except to the sureties thereon and require them to submit to an examination as to their property, under Code Civ. Pro. § 687-690.

A false justification by sureties to an undertaking is a contempt of court. McAveney v. Brush, 1 N. Y. Ann. Cas. 414, and notes; s. C., on another appeal, 3 N. Y. Ann. Cas. 143, and notes.

Where an order has been made requiring the plaintiff to give additional security the court has power to vacate the attachment unless such additional security is given, and in case the original attachment is vacated for this reason the sureties on the undertaking become liable. Corbit v. Nicoll, 12 Civ. Pro. R. 235; s. c. 9 St. R. 525.

Where the defendant gives a bond under Code Civ. Pro., § 688, to relieve the property from the lien of the attachment this is not a waiver of the right to move to increase the security under the attachment. Dusseldorf v. Redlich, 16 Hun, 624.

The court has power to amend the warrant of attachment as to the amount on the application of the plaintiff. Sulzbacher v. Cawthra, 14 Misc. 544.

Where a large amount of property has been levied upon the amount of security to be furnished by the plaintiff may be increased although the defendant is insolvent. Riggs v. Cleveland R. R. Co., 21 W. Dig. 45.

Where plaintiff in an action for $14,200, obtained an attachment upon an undertaking for $200, and the defendant deposited $20,000 with the sheriff and secured a discharge of the attachment, it was held error to deny a motion of the defendant for an increased security, and the appellate court directed a new undertaking to be given in lieu of the old in the sum of $1,400, saying that the amount should be one-tenth the amount claimed by the plaintiff. Bamberger v. Duden, 9 St. R. 686.