CANTOR v. GRANT

CANTOR v. GRANT. N. Y. Supreme Court, First District, Special Term; October, 1889. 1. Parties; substitution of indemnitors in action against sheriff.] Under Code Civ. Pro. section 1421, as amended in 1887, the court has no discretion to refuse an application by a sheriff who is sued for a wrongful levy to substitute his indemnitors, but may under section 1423 require such indemnitors to file a bond to the plaintiff for the payment of any judgment that plaintiff may recover in the action. 2. The same.] Where there were several executions in the hands of the defendant sheriff, subsequent execution creditors in whose favor no actual levy has been made, and who have received no portion of the proceeds of the property sold, need not be substituted, but only those to whom the proceeds of the property levied upon were paid. Herman Cantor brought this action as assignee for benefit of creditors of Isaac Sickle against Hugh J. Grant, late sheriff of the county of Hew York, to recover damages for a wrongful levy upon the assigned estate. The defendant made this motion to substitute as defendants in the action, the indemnitors in the bonds taken by the defendant on making the levy. The motion was opposed by the plaintiff and some of the creditors. Cockran & Clark, defendant’s attorneys, for the motion. Blumenstiel & Hirsch, plaintiff’s attorneys, opposed. Moses R. Crow, for attaching creditors, opposed. For Forms, with other special clauses in the order, see 2 Abb. FT. Pr. and F. 550-552. The conditions were held to be discretionary in Berg v. Grant, 18 Abb. N. C. 449. [MAJORITY — Ingraham, J.] Ingraham, J. The provisions of section 1421 of the Code as amended in 1887 apply to this case, and required the court to grant an order substituting the indemnitors as defendants in the action in place of the defendant. The section provides for the case of one or more levies, one or more judgment creditors, and one or more bonds of indemnity, and I am inclined to think by the modification of the section in 1887, it was the intention of the Legislature to take away the discretion vested in the court by the provisions of the Code in force prior to the amendment. Ho other construction of the section can give effect to the language used. . Applying the decision of the court of appeals in Hein v. Davidson, 96 N. Y. 175, I do not see how this .section can be said to be unconstitutional. By section 1423 of the Code, the court is authorized in its discretion tó require the indemnitors to furnish additional security to the plaintiff, and I think in this case the indemnitors should execute and file a bond to the plaintiff conditioned for the payment of any judgment that the plaintiff may obtain in this action, the penalty of the bond to be the amount claimed ’by the plaintiff in the complaint. It does not appear, however, that any levies were actually made under any of the executions, except the executions of the creditors who realized some portion of the proceeds of the property levied upon; and the only persons who should be made defendants to this action are the five judgment creditors, and their indemnitors to whom the proceeds of the property levied upon were subsequently paid. The motion will, therefore, be granted, and the five judgment creditors who received the proceeds of the property, ■and their indemnitors, be made defendants in this action in place of the sheriff, and such indemnitors be required to give :a bond as before specified. Order to be settled on notice.