10 N.Y.S. 223 | N.Y. Sup. Ct. | 1889
The provisions of section 1421 of the Code, as amended in 1887, apply to this case, and required the court to grant the order substituting the indemnitors as defendants in the action in place of the defendant. The section provides for the case of one or more levies, one or more judgment creditors, and one or more bonds of indemnity, and I am inclined to think, by the modification of the section in 1887, it was the intention of the legislature to take away the discretion vested in the court by the provision of the Code in force prior to the amendment. Ho other construction of the section can give effect to the language used. Applying the decision of the court of appeals in Hein v. Davidson, 96 N. Y. 175, I do not see how this section can be said to be unconstitutional. By section 1423 of the Code, the court is authorized, in its discretion, to require the indemnitors to furnish additional security to the plaintiff; and I think, in this case, the indemnitors should execute and file a bond to the plaintiff conditioned for the payment of any judgment that the plaintiff may obtain in this action, the penalty of the bond to be the amount claimed by the plaintiff in the complaint. It does not appear, however, that any levies were actually made under any of the executions, except the execution of the creditors, who realized some portion of the proceeds of the property levied upon; and the only persons who should be made defendants to this action are the five judgment creditors and their indemnitors, to whom the proceeds of the property levied upon were subsequently paid. The motion will therefore be granted, and the five judgment creditors who received the proceeds of the property, and their indemnitors, be made defendants in this action in the place of the sheriff, and such indemnitors be required to give a bond as before specified. Order to be settled on notice.
