
    Hugo Boessneck et al., Plaintiffs, v. Jacob Bab, Defendant.
    (Supreme Court, New York Special Term,
    May, 1899.)
    Replevin — Right of surety to come in and defend.
    A surety, upon an undertaking given by the defendant in an action of replevin to regain possession of the chattels replevied, will be permitted to come in and defend the action to protect itself from liability upon the undertaking.
    Motion of National Surety Company for leave to come in and defend an action of replevin in which it had become surety for the defendant upon his undertaking, given to reclaim chattels which had been replevied by the plaintiffs. The affidavits upon which the motion was made alleged the insolvency of the defendant, that it would not, according to its own statements, proceed with the defense of the action, that the goods in question were not the goods of the plaintiffs, and had been seized under a second writ by another party.
    Myers, Goldsmith & Bronner, for motion.
    Epstein Brothers (Maurice S. Hyman, of counsel), opposed.
   Truax, J.

It was held by the General Term of this court in this department in Jewett v. Crane, 35 Barb. 208, that sureties upon an undertaking executed by the defendants on an attachment in order to procure the discharge of the attachment may be allowed for their own protection to defend an .action brought against their principal. That case was followed in Hoffman v. Steineau, 34 Hun, 239, in which case an application was made by a surety upon an undertaking in replevin for leave to prosecute ■ the action brought by his principal after the latter had abandoned' it. It was held in this last case that a surety had a right to appear in the action and prosecute the same on behalf of the plaintiff in order to protect himself from liability upon his undertaking. I cannot see why if a surety has the right to prosecute an action in order to protect himself from liability upon his undertaking, he should not have the same right to defend an action in order to protect himself from liability on the undertaking.

Motion granted.  