
    Conrad Mandel, Respondent, v. Amelia Gorman, as Executrix, Appellant, and Conrad L. Heusner, Respondent.
    (City Court of New York,
    General Term,
    February, 1897.)
    Sheriffs — Substitution of indemnitors.
    In an action against a sheriff for a wrongful levy and sale, the defendant is entitled to have his indemnitors substituted in his stead, and the court has no power to impose, as a condition of granting such . substitution, that the indemnitors give a bond for the payment of any judgment that may be recovered.
    Appeal from so much of an order of substitution as imposes a condition.
    This, action was commenced by the plaintiff on or about the lYth day of April, 1893, against the defendant Heusner and John J. Gorman, as sheriff of the óounty of Eew York, to recover damages for a wrongful levy and. sale of the plaintiff’s'goods and chattels under an alleged attachment. „ . .
    On or about the 26th day of June, 1893, a motion was made by and in behalf of the then defendant John J. Gorman, to sub-stitute the indemnitors upon the bond given by the said Heusner, as principal, and said indemnitors as sureties to the said sheriff.
    Mr.. Justice Eewburger granted the application “upon condition that the sureties file a bond conditioned for the payment of any judgment the plaintiff may recover.”
    
      No order was then entered upon this decision.
    Subsequently the defendant John J. Gorman died, and upon the plaintiff’s motion, the defendant Amelia Gorman, as sole executrix under the last will and testament of the said John J. Gorman, deceased, was substituted as defendant in the place of the said deceased/
    On or about the 31st day of October, the motion was renewed on behalf of the defendant Amelia Gorman . to substitute the said indemnitors as defendants in her stead; this motion was denied by Mr. Chief Justice Van Wyck, and'an order was entered thereon on the. said 31st day of October, 1896.
    Thereafter, a motion was made at Special Term of this court, on' behalf of Amelia'.Gorman, for permission to enter an order upon' the decision of Mr. Justice Newburger.. .
    This motion was granted and such Order was entered on the 18th day of November, 1896, by the attorney for the defendant Amelia Gorman, and from so much "of said order as provides that the substitution be granted upon the sureties filing a bond conditioned for the payment of any judgment that may be recovered'herein,. the said defendant Gorman now appeals.,
    Archibald C. Shenstone, for appellant.
    Mashbir & Cukor, for plaintiff, respondent.
    Louis Cohen, for defendant,, respondent..
   Per Ouriam.

Wé think that the condition in the order .appealed from, requiring -the additional bond from the indemnitors, before their substitution as the defendants would be granted in the place of the sheriff, was in excess of the power of the court.

It seems to us that as a matter of right the sheriff was entitled to have the indemnitors substituted in his stead as defendants, without the condition referred to Upon his application to have that done.

The order appealed from must be modified by striking therefrom the words upon their filing a bond_ conditioned for the payment of any judgment recovered in this action,” and as so modified it is affirmed, without costs. ■ ' . 1

Present: Fitzsimots, Coitlaw and McCarthy, JJ.

Order modified as stated in.the opinion, and as modified affirmed,' without costs. " ■ ■ , "  