
    Richard S. Newcombe, Assignee, etc., Resp’t, v. Irving National Bank, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 28, 1889.)
    
    Executors—Injunction—When creditors restrained from: enforcing their judgments.
    Where a party makes an assignment for the benefit of his creditors, and the property assigned is levied upon under different executions, upon which there are various indemnitors, and it is impossible to tell with any degree of certaintywhat part of the property was seized under each particular execution, Held, that the assignee is entitled, in an equitable action, to fix and determine the rights of the parties to an injunction restraining creditors from enforcing their judgments by execution.
    
      • Appeal from order of injunction whereby the defendant,, a judgment creditor of the plaintiff’s assignor, was enjoined from enforcing its judgment by means of executions, upon certain property claimed by the plaintiff to be a portion of the assigned estate.
    
      Stern & Myers, for app’lt; Chas. Donohue, for resp’t.
   Van Brunt, P. J.

The order appealed from is certainly a novel one, but the circumstances under which it was applied for are equally novel. The rule is well established that a court of equity will not interfere by injunction, where an adequate remedy at law exists; and in cases of trespass by the sheriff prior to this new legislation (whereby one man is made responsible for the trespass of another) the person against whom the trespass was committed had an ample remedy at law because he could maintain his action against the sheriff for such trespass and recover the damages which he had sustained.

If such trespass had been directed by any other person as by an indemnitor, he had the right also to enjoin in such action such indemnitor. Under this condition of the law there was no uncertainty in regard to the remedy of the party injured. He had a complete and effectual one against the sheriff and his aiders ana abettors. When the legislation took effect which authorized the court to substitute indemnitors in the place of the sheriff, certain discretion existed in the court, and if the rights of the parties injured would be in any wise impaired by such substitution, the court had the right to refuse the same, and it has been held under this legislation that where there were a variety of indemnitors, and the sheriff was proceeding under a variety of executions, this was a sufficient ground for the refusal of substitution because it was impossible for the injured party to know as to what part of the trespass each indemnitor was liable, and as such indemnitor was not liable for the whole-trespass, it made his remedy uncertain, andas a consequence, the sheriff would not be relieved, but would remain liable for the whole trespass- as he had been previous to this legislation. By the amendment of 1888, no discretion is vested in the court. If the judge finds, upon examination that the indemnitors are responsible, he is bound to endorse his approval upon the undertaking, and thereupon the sheriff is released and discharged from all further liability by reason of the levy, detention and sale of the property seized. This legislation produced a state of things which is entirely new, and has never existed before. The party whose property is seized under various executions where the sheriff has been indemnified by various indemnitors cannot present to the court the fact that he cannot know whom to proceed against for this levy, as a reason why substitution should be refused, because the judge is bound to approve the undertaking, if the sureties are sufficient, and the sheriff, as matter of law, thereupon becomes discharged, and the person whose property has been seized under the execution, must thereafter look to the indemnitors for satisfaction for the trespass committed by the sheriff. As has already been suggested each indemnitor is not liable for the whole trespass unless all the goods were taken under the execution which he has indemnified against, and the sheriff may make successive levies under the different executions, and the indemnitors under each execution are only liable for the levy made under that particular execution.

Under these circumstances unless the owner of the property is present at the time of the levy and is informed by the sheriff as to what he levies upon under each execution and he takes pains to inform himself upon the subject, it is impossible for him to tell as to what property each indemnitor is liable, and then when he comes to try Ms action at law it.depends upon his testimony, where, perhaps,, he is contradicted by the person making the levy under the-execution, and he is thereby thrown into a sea of uncertainty as to whom he is to look for satisfaction. Aik action brought under such circumstances against divers individuals would certainly be a very inadequate remedy; and it is because of the fact that by his action for damages the owner of the property seized under these circumstances cannot secure adequate and certain relief, that the aid of a court of equity is asked.

As has already been stated, it is an unusual application, and the circumstances under which it is made are equally novel. The debtor, under circumstances such as these, has no adequate remedy at law, and it is necessary that this particular proceeding should be entertained by a court of equity because of the change in the relations between the owners of property and the persons who trespass upon them, wrought by this legislation.

We are of opinion, therefore, that the plaintiff was entitled, in view of the fact that Ms property had been levied upon under different executions upon which there were various indemnitors, and in view of the fact that it was impossible to tell with any degree of certainty what part of the property was seized under each particular execution, to the order granted, whereby the plaintiff’s rights might be fixed having before the court all the parties who claimed an interest in the property by reason of the levies made by the sheriff.

The order should accordingly be affirmed, with ten dollars costs and disbursements.

Bartlett and Daniels, JJ., concur.

Van Brunt, P. J.

For the reasons stated in the opinion in the case of Newcombe v. The Irving National Bank (supra), decided herewith, the order appealed from in this case was right, and should be affirmed, with costs and disbursements.

Bartlett and Daniels, JJ., concur.  