57 N.Y.S. 972 | N.Y. App. Div. | 1899
The question involved in this appeal relates to the right of the sheriff and the power of the court to compel substitution of an
On December 12, 1898, the sheriff, under the two executions, levied on personal property claimed in this action by the plaintiff to belong to him. The sheriff sold the property and received therefor the sum of $4,948.35. It consisted of a stock of ready made clothing, which the plaintiff claims was of the value of $42,500, and in support of that claim he exhibits a detailed inventory of the merchandise and its alleged value. After this action was begun and before answer, the sheriff moved the court to amend the summons
It is not to be controverted that a cause of action against a trespasser is a right of property which right cannot be taken away without due process of law.
The constitutionality of the law providing for the substitution of the indemnitor has been_affirmed by the Court of Appeals, but, as that court says, only after much hesitation and by a divided court. (Hayes v. Davidson, 98 N. Y. 19.) The ground upon which the validity of such a statute is placed has also been stated by the Court of Appeals as follows : “ It is only upon the theory that by a substitution of parties the owner is afforded an equivalent remedy for the wrong done him against other responsible parties that the legislation in question can find any justification.” (Dyett v. Hyman, 129 N. Y. 357) The effect of the substitution has also been proclaimed in the case last cited in the following words: “ If the owner on the trial proves a good cause of action against the sheriff, the indemnitors by virtue of such substitution become liable in his place for the damages occasioned by his unlawful taking. If the act
It is apparent from the attitude both of the plaintiff and of the indemnitor in this case that if the latter is substituted as defendant in the place of the sheriff, the plaintiff is at once introduced into a litigation which opens other issues than that relating to the trespass of the sheriff and its consequences. The indemnitor here insists that it is under a liability on both bonds only to the extent of $18,000 ; that its bonds are merely indemnity to the sheriff to that amount; that those bonds having been given before any levy was made or any step taken by the sheriff, it has not become associated with the acts of the sheriff in such a way as to make it in law a joint tort feasor with the sheriff, liable for all the damages resulting from the trespass; that standing, as it does, in the position of surety, making its contract for a specific sum as general indemnity, that liability, if any exists at all, is only directly to the sheriff, and cannot be extended beyond the terms and provisions of the bond. It is, therefore, obvious that, if the indemnitor becomes the sole defendant in the action, the plaintiff will be obliged to litigate other and different issues than those involved in the sheriff’s alleged trespass. He will be obliged affirmatively to establish the liability of the surety under the bonds for the whole extent of the sheriff’s acts, and be subjected to the possibility of a recovery against the indemnitor being limited to $18,000. The nature and extent of the indemnitor’s liability upon the bonds are not to be determined upon a motion. The indemnitor has the right to have the subject considered in the ordinary course of litigation, and there is a grave question in this case relating to that matter.
Under such circumstances, the court could not require additional security to be given by the indemnitor, and the plaintiff could not be placed in that position of security against the substituted defendant, which is absolutely required, before his property right to pursue the real wrongdoer can be changed and the responsibility for the wrong shifted to another person.
The proofs in this record were sufficient to indicate that the bonds are altogether insufficient as indemnity to the plaintiff. Additional security could not be ordered, the liability of the indemnitor
The order must be reversed, with ten dollars costs and disburse•ments, and the motion for a substitution denied, with ten dollars ■ costs.
Van Brunt, P. J., Barrett, Rumsey and O’Brien, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and .motion denied, with ten dollars costs.