
    Leo C. Jakobi et al., App’lts, v. John J. Gorman, Sheriff, Def’t.
    
      (City Court of New York, General Term,
    
    
      Filed November 25, 1892.)
    
    Shebifes—Substitution of indemnitobs as defendants.
    The indemnitors of the sheriff may, in the discretion of the court, he substituted as defendants in his stead after the entry of judgment against him by default, where they move promptly on learning of the default. They being the principal debtors, are the proper parties to move to open the default.
    (Newbubgeb, J., dissents.)
    Appeal from order substituting indemnitors as parties defendant in place of the sheriff.
    
      Gruber & Landon, for app’lt; John E. Brodsky, for resp’ts.
   Fitzsimons, J.

This is an appeal from an order granted under §§ 1421-1423 of the Code of Civil Procedure, substituting as parties defendant the indemnitors in the place of the sheriff.

A judgment herein was entered against the sheriff, and the application of the indemnitors to be substituted as parties defendant was not made until after the entry of the judgment against the sheriff.

The affidavit upon which the order of substitution was granted shows that the sheriff failed to answer and that judgment was granted by default.

That the indemnitors did not know of such failure to answer or entry of judgment until the evening before the application for substitution was made.

The order made was a stringent one against the indemnitors. It required the giving of an undertaking for the payment of the judgment obtained ($993.95), in the sum of $1,500 with two sureties.

That the judgment obtained against the sheriff stand as security for the plaintiff’s claim and the payment of thirty dollars costs.

The appeal is based upon three points: First That the indemnitors were guilty of loches in making their motion for substitution.

In answer thereto we think the special term justice found otherwise and we should not disturb his finding.

We have examined the record and think he did right in declaring that the indemnitors were diligent in making their motion.

Second. That the motion could not be made after the entry of judgment against the sheriff; we find nothing in the sections under which the motion was made which limits the time of the making of the same.

We think that in each case the facts, circumstances and equities are so varying, that the sound discretion of the justice before whom such a motion is made must control the granting or denial of such an order.

Third. That the proper party to move to open the default is the present defendant, the sheriff. The real judgment debtors herein are the indemnitors; they are required by their bond to the sheriff to pay any judgment obtained against him in this action ; therefore, they are really the principals.

We do not deem any elaboration of this statement necessary in view of the decision in Dyett v. Hyman, 129 N. Y., 351; 41 St Rep., 644, in which Ruger, Ch. J., says:

“ The execution of a bond to the sheriff indemnifying him against damages resulting from an unlawful levy and sale of property made by him presumptively establishes the liability of the obligors as principals for the original trespass committed by the sheriff. Thus, those connected with the original wrong are jointly and severally liable with the sheriff.

“ The provisions of the Code, §§ 1421-1423, giving the indemnitors the right to be substituted in such an action as defendants, in place of the sheriff, do not have the effect to limit the liability of the indemnitors to the amount they would be liable in an action by the sheriff upon their bond, and in no way affect or vary the rights of the injured party.”

Thus it will be seen that the court of appeals declared the indemnitors to be principals, and they are, as before stated, really the judgment debtors herein.

We, therefore, think that, as a matter of law and equity, that it was only doing justice to them to permit them to appear and answer herein, as the matter of the vacation of judgments rests in the sound discretion of the justice granting the same.

We think we should not interfere in this instance, for, upon considering all the circumstances, and after reading the proposed answer of the indemnitors, we find that justice was done.

The order must be affirmed, with cost's.

Ehrlich, Ch. J., concurs.

Newburger, J.

(dissenting).—This is an appeal from an order substituting indemnitors as parties defendant in the place of the sheriff.

It appears that judgment had been entered herein, in favor of the plaintiff, and against the defendant before the order of substitution was made.

As the statute under which this proceeding is instituted is clearly in derogation of the common law and common right, it-must be strictly construed. Hayes v. Davidson. 98 N. Y., 19.

The plaintiff having prosecuted his action to judgment, the indemnitors cannot be substituted while such judgment is in force.

The order appealed from must be reversed, and the motion to substitute indemnitors denied with costs.

Order affirmed, with costs.  