
    Abraham Ehrlich, Respondent, v. Moses Rinzler et al., Appellants.
    (Supreme Court, Appellate Term,
    November, 1909.)
    Attachment — Bond to release attachment — Liability on bond.— As affected by failure of marshal to deliver property.
    Where one who owns property, seized by a marshal under a warrant of attachment issued against the property of another person by the Municipal Court of the city of New York, executes and flies an undertaking conditioned that he will establish his ownership as provided in section 85 of the Municipal Court Act of the city of New York, and an order is made thereon directing the marshal to deliver the property to him, he is liable to the plaintiff upon such undertaking upon bis failure to establish his ownership of tiie property, though the marshal fails to deliver the property to him but delivers it to the defendant’s trustee in bankruptcy instead.
    Appeal by the defendants from a judgment in favor of the plaintiff rendered in the Municipal Court of the city of Bew York, second district, borough of Manhattan.
    Abraham Brill, for appellants.
    Charles Frankel, for respondent.
   Dayton, J.

Defendants gave their bond to release a horse and wagon attached in an action brought by Abraham Ehrlich against Samuel Binzler. The bond was approved, filed and an order made thereon directing the marshal to deliver the property to the claimant, Moses Binzler, defendant’s father. Subsequently to the levy a receiver in voluntary bankruptcy was appointed for Samuel Binzler against whom the attachment was issued. The receiver demanded and received the property from the marshal. This action to recover upon the bond was brought within the three months. Moses Binzler defended on the ground that he was the owner of the property by virtue of a • bill of sale from his son Samuel. The jury found against Moses Binzler; the trial judge very properly remarking: The jury could not have rendered any other verdict on the evidence. If they had rendered any other than the one they did I should promptly have set it aside.” The only question on this appeal is whether, plaintiff having failed to prove that Moses Rinzler received the horse and wagon attached and for the delivery of which this bond was given, the complaint should have been dismissed. The object of sections 85, 86 and 87 of the Municipal Court Act is to enable a claimant to obtain the attached property by giving an adequate bond to take the place of the property; and the judgment, if for the plaintiff, must be for the value of the property, with interest. Upon the filing and approval of such bond, the marshal must deliver it to the clerk of the court. Upon the delivery, filing and approval of this bond, and the order for the delivery of the property, it was incumbent upon Moses Rinzler to obtain the property for which his bond stood. The bankruptcy of his son and the taking of the property by his receiver did not relieve the defendants. The reasoning of Mr. Justice Herrick in Haywood v. Townsend, 4 App. Div. 246, applies. In that case the bond was not filed, but it was held as follows: “ Their signing the bond was not conditioned upon its being filed; as above stated the requirement that it should be filed was not for their benefit * * *. When they delivered it to him (the trustee) and left it with him, after having executed it, it was, so far as any act of theirs was necessary to be done to fix their liability upon the bond, complete — when they placed in his hands the bond signed by them, their act was finished. Does the fact that, after it had partially fulfilled its office but while its more important function remained unperformed, it was taken and destroyed by one of its signers, change the situation except as to whether such instrument ever existed ? It seems to me not.” The case at bar is less extreme. When this bond was approved and filed and the order made for the delivery of the property to Moses Rinzler, the property was released from the attachment; and, if Moses Rinzler failed to obtain it, must plaintiff lose the attachment and the bond too ? Plaintiff was justified in relying upon the bond and in paying no further attention to the property for which the bond was substituted. Einzler had his remedy against the receiver in reclamation proceedings. Surely plaintiff was not bound to take the bond and at the same time put the property into the claimant’s possession. The only condition of the bond as prescribed in section 85, Municipal Court Act, is that, in an action upon the bond to be commenced within three months thereafter, the claimant will establish that he was the general owner of the property claimed .at the time of the seizure; or, if he fails to do so, that he will pay to the plaintiff the value thereof, with interest. That issue was tried in this case, and it was found that Moses Einzler was not such owner. Section 85 of said act concludes with the following clause: “ The marshal must thereupon deliver the property claimed to the claimant.” This is a mandatory direction to the marshal after the bond has been approved and filed. It is purely for the protection of the claimant in furtherance of his bond, and the obligation to deliver the' property rests upon the marshal alone. The plaintiff stands indemnified for the release of his attachment, and the sureties must pay if he recovers in the action against his claimant.

The motion to dismiss the complaint was properly denied. Defendants’ bond, however, was conditioned to pay “ One hundred and fifteen dollars,” and must be construed “ as if it were a covenant to pay the sum * * * specified in the condition thereof.” Code Civ. Pro., § 1915. The verdict was for the sum of $230, the amount named in the penalty. This was error, as no more than $115 could be recovered.

The judgment must, therefore, be modified by reducing the same to the sum of $115, and, as modified, affirmed, without costs of this appeal to either party.

Gildersleeve and Goff, JJ., concur.

Judgment modified and, as modified, affirmed, without costs of this appeal to either party.  