18 N.Y. 374 | NY | 1858
At the time the bond upon which this action is brought was executed, the plaintiff was sheriff of Oswego, *375 and Lee was his deputy. An execution in favor of the defendant against one Harrington, had been delivered to Lee as such deputy, and property in the possession of the defendant in the execution had been seized by him. To induce the deputy to sell the property thus taken in execution, and which might belong to some other person, the defendants, who were plaintiffs in the execution, executed the bond in question. Aware that any person claiming the property which had been taken might, at his election, sue either the sheriff or the deputy, it was made a condition of the bond, that the defendants should indemnify not only the sheriff, but "all and every person and persons aiding and assisting him in the premises." In respect to the deputy who held the execution, and who in fact received the bond, the plaintiff became the trustee of an express trust. The obligation was executed to him for the benefit of his deputy. It is the precise case for which provision is made in the 113th section of the Code. The suit was properly brought in the name of the sheriff. The deputy having been sued for the price of a wagon he had sold under the defendants' execution, and a judgment having been recovered against him, the defendants became liable, according to the condition of their bond, for the amount recovered against him, together with the expenses incurred by him in defending the action. Without reference, therefore, to the assignment of the demand to the plaintiff, or whether such an assignment was perfected or not, the action was well brought and the recovery right.
The judgment of the Supreme Court should, therefore, be affirmed.
All the judges concurring,
Judgment affirmed. *376