James G. Shaw, Appellant, v. B. Sherwood Dunn, Respondent

James G. Shaw, Appellant, v. B. Sherwood Dunn, Respondent. First Department, December 20, 1907. Attachment — claim of third person — verdict of sheriff’s jury not subject to review — undertaking. There is no review by motion or otherwise of’a verdict of a sheriff’s jury as to the validity of the claim of a third person to property attached. When such jury finds that the claim of the third person is valid, the attaching party in order to retain the levy must indemnify the sheriff by an undertaking as required by the Code of Civil Procedure or the latter may release the property. When such attaching party can give an undertaking with two sufficient sureties, he should not be required to go to the expense of an undertaking by a surety company. Appeal by the-plaintiff, James Gr. Shaw, from parts of an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew Y°i’k on'the 29th day of October, 1907, denying the plaintiff’s motion to restrain the sheriff of Hew York county from releasing certain bonds from the levy of an attachment except upon the plaintiff’s giving an undertaking. John Henry Hammond, lo? the appellant. , [MAJORITY — Houghtoh, J.:] Houghtoh, J.: The plaintiff obtained an attachment and delivered the same to the sheriff of New York county, who levied upon certain railroad bonds alleged to belong to the defendant. A third party made claim to the bonds, and thereupon the sheriff impanelled a jury to try the validity of such claim. By their verdict the jury found that the bonds belonged to the claimant at the time of the levy, and fixed their value. The plaintiff claimed that the inquisition was improperly conducted, and moved at Special Term to set aside the verdict of the jury and to enjoin the sheriff from releasing the bonds from the levy and from delivering them to the claimant. An order was made restraining the sheriff from such delivery on condition that the plaintiff execute and deliver to him a surety company indemnifying undertaking in the sum of $45,250. The motion should have been denied.- There is no provision of law allowing a review, by motion or otherwise, of the action of a sheriff’s jury impaneled to try the validity of a claim of a third person to property attached. (Cohen v. Climax Cycle Co., 19 App. Div. 158.) . Such a jury is permitted by sections 657 and ,658 "of the Code of Civil Procedure to be impaneled to try such a claim for the purpose of enabling the sheriff to demand from the plaintiff indemnity against the claim of a third party. Unless such indemnifying undertaking be given the sheriff is permitted to deliver the property to the claimant; and if it be given he must retain the property under his levy. Section 658 prescribes the kind of undertakings the kind of sureties, and how they shall justify, and before whom and what notice shall be given. ' The plaintiff could have given an undertaking with two sufficient-sureties who satisfactorily justified, and it was improper to confine him to an expensive surety company bond even if the order was otherwise proper. The proceeding' is plainly stated in the sections of the Code referred to, and complication has arisen from the plaintiff mistaking his right to move to -set aside the verdict of the sheriff’s jury. • The better way to clear up the. matter is to reverse the-order and thus remit the plaintiff to the practice prescribed by the Code. The order should be reversed arid the motion denied, without costs. Patterson, P. J., Ingraham, McLaughlin and Clarke, JJ., concurred. " . . Order reversed and motion denied, without costs..