47 N.Y.S. 754 | N.Y. App. Div. | 1897
In the month of November, 1893, John J. Gorman, being then sheriff of New York, made a levy under an execution upon certain property which was claimed by other persons than the judgment debtors, and upon his demand, the plaintiff in that execution procured to be executed and delivered to the sheriff a bond of indemnity by one Celia Rubenstein and William Winneis, indemnifying the sheriff against costs or damages which he might sustain by reason of the levy and sale of the property levied upon. After that undertaking was delivered, the sheriff proceeded to sell upon the execution, and thereupon the plaintiff in this action sued the sheriff for damages for the wrongful taking of the property. The case was put at issue, but nothing seems to have been done in regard to it until the 21st day of May, 1895, when the sheriff died and the present defendant, as his executrix, was substituted as defendant in the action. After that had been done, the action remained in the same condition until the month of March, 1897, when this motion was made, that the indemnitors should be substituted as defendants in the place of the sheriff’s executrix. The indemnitors appeared upon the motion by counsel, as did the plaintiff, and after a hearing the order was denied on the ground that the defendant had been guilty of gross laches in not sooner making the application to substitute the indemnitors as defendants therein, the ground of denial being stated in the order. The motion is made pursuant to the provisions of section 1121 of the Code of Civil Procedure, which has been declared to be a constitutional exercise of the power of the
Before that time, it .will bé noticed^ theré was no provision in the statute for the granting of the substitution upon -the motion-of the sheriff, and .that' provision only came to exist by the amendment in 1887. In passing that ■ amendment the Legislature Used the word “shall.” That word in statutes imposing a duty upon a public officer is mandatory and not directory, and in view of the fact that it was put into.this statute almost immediately after thé court had declared that it was discretionary in the courts whether to grant the motion or not, it is quite suggestive -that the word was intended to have its usual meaning in such cases. There is nothing in the statute, or in the- connection in which this word is used, to deprive it of its usual and ordinary meaning. The court, therefore,'erred in hold
But it does not-follow, although the court is required to grant the order, that it is not in a position to protect the plaintiff in the action where, for any reason, a suit against the indemnitors would not be likely to afford him sufficient protection. Section 1423 of the Code expressly gives to the court the right to impose such terms for the security of either of the original parties as justice requires. Pursuant to the provisions of that section it was in the power of the court, upon the hearing of the application, to impose such terms as would insure the protection of the plaintiff and enable him to obtain his damages and costs in case he was finally successful- in the action. This discretion the court should have exercised if a case had been made for it. Whether it was made or not is not necessary for us to decide. The proper determination of the motion requires us to reverse this order and to remit the whole matter to the Special Term, that it may consider whether justice between the parties requires that any terms should be imposed .as a condition of granting the order, and to fix such terms as in its judgment are proper.
Williams and Ingraham, JJ., concurred; Van Brunt, P. J., dissented.
Order' reversed, with ten dollars costs and disbursements.