
    Charles H. Dyett, Assignee, Resp’t, v. Samuel P. Hyman et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed December 22, 1891.)
    
    1. Attachment—Liability oe indemnitors.
    Indemnitors upon a bond given to the attaching officer, to hold him harmless against the consequences of a wrongful seizure and removal, are jointly and severally liable with the sheriff for the damages occasioned by the trespass, and they cannot by any arrangement between themselves prejudice the rights of an injured party in the prosecution of those who committed the trespasses upon his pioperty.
    
      2. Same—Code Civ. Pro., §§ 1421-1433.
    Code Civ. Pro., §§ 1421 to 1423, simply authorize the indemnitors to apply to the court for permission to defend an' action in the place of the sheriff, and do not in any respect vary the rights of the plaintiff in the prosecution of his action.
    3. Same—Evidence.
    In an action brought by an assignee for creditors, against the indemnitors upon the bond of a sheriff who lias wrongfully seized the assigned property, a judgment in a former action brought by the defendants to' set aside the assignment as fraudulent is admissible in favor of said assignee, plaintiff.
    
      4, Same—Discontinuing action.
    The plaintiff has the right in such an action, by leave of the court, to discontinue the action as to any or all of such defendants as he chose.
    Appeal from judgment of the New York common pleas, general term, affirming judgment in favor of plaintiff entered, upon a verdict directed by the court in an action to recover damages for trespass de bonis asportatis.
    
    
      Alex. Blumenstiel, for app’lts; B. F. Einstein, for resp’t.
    
      
       Affirming 37 St. Rep., 251.
    
   Ruger, Ch. J.

The plaintiff brought trover, as assignee in a general assignment by Kapp for the benefit of his creditors, against the defendants Hyman, Morris, Stroock and Baffin to recover damages for the taking and conversion of certain personal property. The defendants admitted the execution of the assignment, but justified the taking by a sheriff under certain attachments issued against the property of said Kapp by a justice of the supreme court, and an averment that the property taken belonged to said Kapp. The allegations of the answer were probably insufficient to raise the question of fraud in the assignment, under the authorities, Weaver v. Barden, 49 N. Y., 287, but, inasmuch as the parties proceeded to try that issue without objection, we regard it as legitimately in the case.

The claim that the assignment was void for fraud and conferred no title upon the plaintiff, constituted the only affirmative defense stated in the answer. The execution of the assignment and the taking of the property by the sheriff were specifically alleged in the complaint and admitted by the answer.

Upon the trial the plaintiff proved the execution and delivery of the assignment; the taking of the property from plaintiff’s possession on September 1, 1884, by the sheriff on attachment in favor of the defendant Hyman and others, and its subsequent sale by him and the execution and delivery of a bond to the sheriff, dated September 2, 1884, signed by Hyman as principal and Morris and Stroock as sureties, indemnifying him against all loss or damage in consequence of the levy, seizure and sale on Hyman’s attachment of the property referred to in the complaint. The plaintiff also proved a judgment dated December 13, 1887, rendered in a creditor’s action in the supreme court, brought by the defendants Hyman and Morris against Kapp and Dyett, the assignor and assignee, in favor of the defendants therein, wherein it was adjudged that the assignment of Kapp and Dyett wan not made with intent to hinder, delay or defraud creditors, and was, in all respects, valid as against said Hyman and Morris and all other creditors of'said Kapp. This judgment operated as conclusive evidence of the validity of the assignment, and estopped the defendants from showing anything to the contrary in this action. It does not, therefore, admit of any doubt but that the plaintiff made out an unexceptional case to recover against the defendants, Hyman and Morris. Their liability for the original trespass committed by the sheriff was presumptively established by their approval and satisfaction of his act, manifested by the execution of a bond of indemnity to him. The sale of the property was secured by.this bond, and the defendants were thereby shown to have exercised a controlling authority over the action of the sheriff in procuring the consummation of the wrong complained of, and thereby made themselves liable as principals for the original unlawful taking. Herring v. Hoppock, 15 N. Y., 411; Ball v. Loomis, 29 id., 412; Ford v. Williams, 13 id., 584.

The defendants, who thus participated in the original wrong, were jointly and severally liable with the sheriff for the damages occasioned by the trespass. The plaintiff could have elected to sue one or more of the defendants, and it did not operate as a defense to the action brought by him to show that there were other persons liable for the same trespass who were not joined as defendants in the action. Wehle v. Butler, 61 N. Y., 245; Rose v. Oliver, 2 Johns., 365.

It is urged by the appellants that no cause of action was made out against the defendants, for the reason, as is claimed, that they had the right, as indemnitors, to be substituted as defendants in the place of the sheriff, Code Civ. Pro., §§ 1421 to 1423, and they argue that in case such substitution had been permitted by the court the indemnitors would have been liable for such damages only as they would have been subjected to in an action by the sheriff upon their bonds of indemnity, and that the same r-ule of liability should be applied to them in this action. This claim is founded in a misapprehension of the meaning and effect of the provisions of the Code referred to, and of the extent of the liabilities incurred by joint wrongdoers. Parties who are jointly and severally liable to the owner for damages arising out of an unlawful taking of property cannot, by any arrangement between themselves, prejudice the rights of an injured party in the prosecution of those who committed the trespasses upon his property. Hanmer v. Wilsey, 17 Wend., 92; Williams v. Sheldon, 10 id., 654. Such arrangements are res inter alios, to which the owner has never consented, and by which he cannot be bound. The sections of the Code referred to simply authorize the indemnitors to apply to the court for permission to defend an action in the place of the-sheriff, and do not, in any respect, vary the rights of the plaintiff in the prosecution of his action. If the owner, on the trial, proves a good cause of action against the sheriff, the indemnitors, by virtue of such substitution, become liable in his place for the damages occasioned by his unlawful taking. If the act of permitting the substitution impaired in any material respect the right of the owner to recover in the action, it would furnish a conclusive reason why the substitution should not have been permitted. The plaintiff’s cause of action against a wrongdoer is a right of property, and can be taken from him only by due process of law. If these provisions authorize the court to deprive him of a lawful remedy against one and compel him to prosecute others, against whom he has no cause of action, they are open to the objection that they authorize the talcing- of property in violation of the provisions of the constitution. It is only upon the theory that by a substitution of parties the owner is afforded an equivalent remedy for the wrong done him against other responsible parties, that the legislation in question can find any justification. Hayes v. Davidson, 98 N. Y., 23.

The theory presented by the appellants in this case, that the defendants are liable as indemnitors only, and are governed by the provisions of their bond, is wholly unfounded. The liability of the defendants rests wholly upon their participation in the original wrong and their liability for its consequences incurred by reason of their complicity in the trespass. This, it is true, is evidenced by the bond of indemnity which authorized the sheriff to consummate the original wrong by an unlawful sale and conversion of the plaintiff’s property, but in no sense constitutes an action upon the bond. We are, therefore, of the opinion that the plaintiff made out a good cause of action against the defendants, and that the court committed no error in directing a verdict for the plaintiff.

The defendants, however, made some objections to the admission of evidence against them, and, among others, to the introduction of the judgment roll in the action of Hyman and Morris against Kapp and Dyett, and took an exception to the ruling of the court thereon, and now urge this exception as a reason why the recovery in this case should not stand. The first point made to its admission was that it was immaterial and incompetent. The only ground now suggested why the ruling was incorrect is the claim that the defendants Hyman and Morris do not appear in the two actions in the same character, and that what was adjudged against them in one action should not be used against them in the other. The argument is that they appeared in the first action as judgment creditors and in this as indemnitors. The answer to this argument is that it has no foundation in fact, as they appear in both actions in their individual character and not in any representative capacity. The fact that in the first action it was essential that they should show a judgment and a return of execution thereon unsatisfied, in order to sustain an action to reach equitable assets, did not affect the character of the action. Neither did the fact that the plaintiff has resorted to a bond of indemnity to prove their participation in the tort, which is the basis of this action, affect the ground of their liability for such tort. In either case they represent individual interests and are liable as individuals only in such actions.

The second objection was that it was inadmissible against the defendants Strooek and Ballin because they were not parties to it. This objection furnished no reason why the evidence was not competent against Hyman and Morris; but was, undoubtedly, a good reason why Strooek and Ballin should not be prejudiced by it. The court admitted the evidence as against Hyman and Morris alone, and as against them it was, undoubtedly, competent. If, for any reason, Strooek and Ballin could have been prejudiced by its admission, it is enough to say that they are not now parties to the suit, the plaintiff having on the trial discontinued the action as to them, and they cannot now avail themselves of any errors which have not operated to their prejudice. It was also claimed that the evidence was not admissible as against Morris: and the ground of this objection was the claim that he represented different characters in the two actions and was not bound in one for any adjudication made in the other. We have already seen that this claim is not tenable.

After the close of the evidence the plaintiff asked leave to discontinue the action as to Stroock and Baffin, upon payment of costs. The defendants’ counsel, Mr. Blumenstiel, objected to the motion, but it was granted by the court and the action was thereupon discontinued. No ground of objection to the motion was stated by Mr. Blumenstiel; neither does it appear in whose behalf he interposed the objection. It can hardly be supposed that Stroock and Baffin objected to be relieved from, their liability in the action, and Hyman and Morris had no reason for objecting to such discontinuance, as they had no legal right to require that Stroock and Baffin should be continued as defendants in the action. The plaintiff, had the right originally to sue one or more of the joint wrongdoers, and hold them at his option either severally or jointly; and it necessarily follows- from such right that hc-could, at any time, by leave of the court, discontinue the action as to any or all of such defendants as he should elect. Williams v. Sheldon, 10 Wend., 654; Lord v. Tiffany, 98 N. Y., 412.

It is also claimed by the appellants that, even though the -original taking by the sheriff was wrongful, if the property was afterwards seized upon valid process against the owner and its proceeds applied to his benefit, such facts could have been proved by the defendants in mitigation of damages. No such questions, however, are presented by any exception or request made in the case. This defense was not set up in the answer or attempted to be proved by evidence. The facts in evidence in the case are not only very far from establishing any such defense, but they. positively overthrow it. Such a defénse in any action can arise only when the general property in the goods still remains in the debtor and the application of the proceeds is made for his benefit. See Hanmer v. Wilsey, supra ; Roberts v. Stuyvesant Safe Dep. Co., 123 N. Y., 57; 33 St. Rep., 175.

Here, however, so far as the assets are concerned, it is conclusively proved that the assignor was the owner of the property, and it is uncontradicted that the proceeds of the property were never appropriated to his use or benefit. It is, however, quite unnecessary to discuss this aspect of the case, as it is not in any way presented by the record. The defendants’ counsel requested the court to be permitted to go to the jury on the facts; but he omitted to state what facts he supposed they had a right to consider. We are now unable to see any evidence upon which he was entitled to ask for a verdict.

The judgment should, therefore, be affirmed.

Judgment affirmed, with costs.

All concur.  