Louis Ullman and Others, Respondents, v. Amelia Gorman, as Executrix, etc., of John J. Gorman, Deceased, Appellant, Impleaded with Others

Louis Ullman and Others, Respondents, v. Amelia Gorman, as Executrix, etc., of John J. Gorman, Deceased, Appellant, Impleaded with Others. Action against a sheriff for an unlawful levy—right of his executrix after his death to have his indemnitors substituted—laches. An application made by the executrix of a sheriff, for the substitution in her place and stead of his indemnitors as defendants, in an action brought originally against him in order to recover- (damages alleged to have resuited from his wrongful levy under ah execution, should not be denied, although the application be not made until two years after the death of the sheriff; and the only discretion the court may exercise ip the matter relates to the imposition of such terms as will-protect the original parties. Appeal by the defendant," Amelia Gorman, as executrix, etc., of - John J. Gorman, deceased, from an Order of "the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 23d day of December, 1896, denying her motion to substitute the sheriff’s indemnitors in an action brought against him in his lifetime, said appellant being the personal representative of said sheriff. A. C. Shenstone, for the appellant. A. Blumenstiel, for the indemnitors, respondents. [MAJORITY — Rumsey, J.:] Rumsey, J.: This is a motion by the executrix of John J. Gorman, formerly sheriff of the county of New York, to substitute his indemnitors as defendants in her place in an action originally brought against the sheriff for damages for the conversion of property taken by him under an execution. The action was brought in December, 1893, and no steps appear to have been taken in it until the death of the sheriff on May 21, 1895. After that the present defendant was substituted as defendant in the action in his place, and thereupon, in May, 1897, she made this motion to substitute the indemnitors. Upon the hearing of the motion the plaintiff in the action did not appear. The only persons who did appear were the counsel for some defendants other than the sheriff’s representative, and the counsel for the indemnitors, so that it would seem that the plaintiff would have no objection to the granting of the motion. There is no dispute as to the giving of. the indemnity, and consequently no question upon this motion, that if the property taken by the sheriff was the property of the plaintiff and taken in violation of his rights, the sheriff would have been entitled to be indemnified for his costs and damages by the persons who were sought to be made defendants in this action. If the sheriff should give to them, before the trial of the action, notice of its pendency, and call upon them to defend it, a judgment in the action, if it went against the sheriff, would be conclusive against these indemnitors. .That liability would continue until the Statute of Limitations had run against an action upon the undertaking which they have executed. That being the case, it is not apparent how any delay of the sheriff in moving to substitute them as defendants in the action could affect their rights. If they were made defendants in this action and were defeated, they would be compelled to pay the judgment for damages and costs which was recovered, and that would be the end of it. If they were not made defendants, and they had notice of this action, and the sheriff should be defeated- in it,, just as.soon as the present defendant paid the judgment she would have her remedy over against the indemnitors, whose only defense - would be that the bond of indemnity did not cover that particular case. That defense, however, they can assert as successfully against ' this plaintiff as they could against the sheriff. The court, as we have held at this- term, had no discretion to deny the motion oil account of laches in making it, its discretion being limited solely to the imposition of such terms as would protect the original parties! We see no reason upon this motion to require the imposition of any: terms. The indemnitors are certainly in no worse condition if they should be substituted as defendants here, than they would be if the claim against them should be delayed until after a recovery against the sheriff. For these reasons it was error to deny this motion, and the order denying it should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs. Williams and Ingraham, JJ., concurred; Van Brunt, P. J., concurred in result. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. .