O'BRIEN against MERCHANTS' INSURANCE COMPANY

O’BRIEN against MERCHANTS’ INSURANCE COMPANY. New York Superior Court; Special Term, October, 1874. Discontinuance.—Attachment. The provision of section 333 of the Code of Procedure, limiting the right of the sheriff to discontinue proceedings under warrants of attachment, except “ at such times and upon such terms as the court or judge may direct,” is for the protection of the parties interested in the subject attached, that there shall be no discontinuance by the sheriff to inure to their injury. Where those interested to the extent of the surplus to arise after payment of the judgment and costs from the attached property would be injured by the sheriff’s discontinuance of the proceedings, the court will require him to prosecute to judgment, and then after payment thereof, and of all costs under subd. 4, of section 337, of the Code of Procedure, to deliver over the residue to those so interested, upon demand. James O’Brien, sheriff of the city and county of New York, brought four actions in this court against The Merchants’ Insurance Company, The Commercial Fire Insurance Company, The Williamsburgh City Fire Insurance Company, and The Mechanics’ & Traders’ Insurance Company, respectively, to collect the amounts of four policies of insurance, of two thousand five hundred dollars each, by virtue of seven warrants of attachments, amounting to about seven thousand dollars, against one E. S. Candler, Jr., the party insured. The defendants, on the eve of trial, offered to pay to the sheriff the amount of the attachment and taxable costs to date, and demanded that on such payment the actions should be discontinued by the sheriff. Brown, Ball & Yanderpoel, attorneys of record, for the sheriff, moved to discontinue, on said terms, under section 232 of the Code. William W. Badger, as attorney in charge of the actions on behalf of the attaching creditors, he holding also a power of attorney from said E. S. Candler, Jr., the party insured, and claiming to protect his interest and margin in the surplus in the policies, over and above the amount called for by the attachments, opposed. George W. Parsons, as counsel for the defendants, united in the motion of the sheriff to discontinue. [MAJORITY — C turns, J.] C turns, J. It appears, from the papers, that the granting leave to the sheriff to discontinue these suits commenced by him on behalf of sundry attaching creditors of one Candler, to collect claims in Candler’s favor, on policies of insurance, would prejudice Candler’s interest in any surplus that might be due to him after the claims and costs of the attaching creditors were paid in full. The effect of such a discontinuance, it is claimed, and seemingly with reason, would be to defeat Candler’s recovery, from the insurers, of such surplus, by reason of the limitations as to the time in which he can sue. The provisions of the Code (§ 232), limiting the right of the sheriff to discontinué this class of actions, except “at such times, and upon such terms, as the court or judge may direct,” is evidently designed for the protection of the parties interested in the debts attached ; and that there shall be no discontinuance, on the part of the sheriff, of actions that will inure to the injury of such parties, I think it is the duty of the sheriff to prosecute these suits to judgment; and when, as provided in subdivision 4 of section 237 of the Code, “the judgment and all costs of the proceedings shall have been paid, the sheriff, upon reasonable demand, shall deliver over to the defendant the residue of the attached property, or the proceeds thereof.” The motion is denied, without costs.