Plаintiffs brought this action against a city marshal of the city of New York and against his bondsman to recover damages alleged to have been sustainеd by plaintiffs because of a sale by the marshal of certain personal property belonging to Abraham Lifschitz and Bertha Lifschitz. The comрlaint was dismissed at Special Term on motion of the bonding company on the ground that plaintiffs had failed to set forth a cause of action. The Appellate Division, by a divided court, sustained the complaint but certified that a question of law is involved which ought to be reviewed by this court, tо wit: “ Does the complaint state facts sufficient to constitute a cause of action?”
On November 4, 1937, a judgment was docketed in favor of one Esther Siegel and against Abraham Lifschitz and Bertha Lifschitz upon which an execution was issued to the marshal. The sale was conducted on Novеmber 10, 1937. It is alleged that no levy was made under the execution at least six days before making the sale, that no notices of sale were posted (Civ. Prac. Act, § 707), thereby preventing the plaintiffs from obtaining timely knowledge or notice of the proposed sale, thus preventing them from taking duе and timely proceedings to protect their interests, that no inventory was made of the property sold and, consequently, it was not offered for sale in lots in a manner calculated to bring the highest price as required by law (Civ. Prac. Act, § 706), but was sold in bulk at a price far below its real valuе, that the sale rendered the owners insolvent, that they had no knowledge or notice of the sob, and that the marshal thereby “ aided, abetted, assisted and enabled the debtors and the said Esther Siegel to prevent the property of the debtors from being made liable for the payment of debts of the debtors of these plaintiffs, or being levied upon by execution or warrant of attachment, contrary to the statute in such casеs made and provided.”
The bond upon which liability of appellant must depend provides that “ the condition of the above obligation is *438 such, that if the said Julius Grabel shall well and faithfully executе the duties of said office of Marshal of the City of New York without fraud, deceit and oppression, and shall answer to the said The City of New York and any parties that may complain, and shall properly account for and pay over any monies and property received by him as such Marshal, then the above obligation to be void, otherwise to remain in full force and effect.”
The contract of suretyship measures the liаbility of the defendant
(Wood
v.
Fisk,
An action was commenced by plaintiffs on their claim against Abraham and Bertha Lifschitz on December 2, 1937, which lаter ripened into judgment in their favor. At the time of the sale by the marshal, plaintiffs were simple creditors of A.
&
B. Lifschitz without lien upon or special intеrest in the property sold. No property interest or established right of the plaintiffs was affected by the alleged misconduct of the marshal nоr do the plaintiffs charge the marshal with any fraudulent conduct in connection with the sale and affecting any of their rights. No statutory duty was imposed on the marshal as to simple creditors without hen on or a fixed interest in the property sold except that imposed by section 695 of the Civil Praсtice Act, which has no application here. There is no allegation that plaintiffs have been deprived of some of their rights becаuse of any malicious, deceitful or fraudulent act of the marshal. Nevertheless, even though there may be spelled out of the allegations in the complaint some assertion of
*440
fraud, deceit or oppression on the part of the marshal, that constitutes no aid to plaintiffs in fоrmulating a cause of action against the defendant, for the debtors only may avail themselves of such misconduct
(Carpenter
v.
Doody, supra).
No cause of action is alleged or would lie against the marshal in favor of plaintiffs under the Bulk Sales Act (Pers. Prop. Law [Cons. Laws, ch. 41], § 44),under which an action is authorized by interested parties to set aside a transfer where failure of the purchaser to give' ten days’ notice to creditors of the proposed sale occurs, nor under article 10 of the Debtor and Creditor Law (Cons. Laws, ch. 12), where an action may be maintained only against the owner and purchaser and their privies of property fraudulently transferred. Liability of the appellant is as great but no greater than that of the marshаl while acting in an official capacity (21 R. C. L. p. 974;
People ex rel. Metcalf
v.
Dikeman,
If the sale was void for fаilure of the marshal to comply with statutory requirements
(Dauchy Co.
v.
Wilkinson,
The order of the Appellate Division should be reversed and that of the Special Term affirmed, with costs in this court and in the Appellate Division and the question certified answered in the negative.
Crane, Ch. J., Lehman, Hubbs, Loughran and Finch, JJ., concur; O’Brien, J., taking no part.
Ordered accordingly.