
    George D. De Shields, Jr., as Assignee of George D. De Shields for the Benefit of Creditors, Appellant, v. Frank D. Creamer, as Sheriff of the County of Kings, Respondent.
    
      Sheriff’s indemnitors — not substituted, for him where they claim that the bond, was procured by misrepresentation — order of substitution, howfwr a bar to such a defense.
    
    In an action against a sheriff to recover damages for an alleged wrongful levjr, an order substituting the indemnitors of the sheriff in the latter’s place should not be granted, where the indemnitors resist the application upon the ground that the bond executed by them was procured by misrepresentations made by the sheriff’s deputy and was withdrawn before any seizure was made on the faith thereof, it being doubtful whether an order granting the sheriff's application would preclude the indemnitors from, interposing in the action the defense indicated in their opposing affidavits.
    Semble, that the fact that the indemnitors do not.appeal from the order of substitution, does not deprive the plaintiff of his right to object thereto.
    Appeal by the plaintiff, George D. De Shields, Jr., as assignee of George D. De Shields for the benefit of creditors, from an drder of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 21st day of April, 1899, substituting the indemnitors of the sheriff as defendants in this action in his place.
    
      George W. Hopkins, for the appellant.
    
      Charles H. Hyde, for the respondent.
   Cullen, J.:

This action is brought to recover damages in the sum of $15,000 for trespass in wrongfully levying and detaining certain personal property of the plaintiff, and also for wrongfully consuming, wast- . ing and destroying such property. The defendant justifies under attachments issued against the plaintiff’s assignor. Before answer, upon an affidavit that Joseph Beck and Michael Y. Dorney had, by bond in the penalty of $1?800, indemnified him upon such seizure, the defendant moved to substitute said indemnitors as defendants in his place. The plaintiff and the indemnitors alike resisted the . application, and an affidavit was submitted by the attorney for the latter tending to show that: the bond was given to the sheriff on misrepresentations made by his deputy, and that it was withdrawn before any seizure was made on its faith.

The ground on which the constitutionality of the Code provisions authorizing the substitution of indemnitors in place - of the officer committing the alleged trespass has been upheld by the Court of Appeals is that the plaintiff in the trespass suit is given the same relief against the substituted parties which, were it not for the statute, he would have against the officer commit- ■ ting the trespass. (Hayes v. Davidson, 98 N. Y. 19; Dyett v. Hyman, 129 id. 357.) If the plaintiff is compelled to prove additional facts or litigate: new issues with the substituted defendants, which would have been unnecessary in his action against the officer, then plainly his right of action for the injury inflicted upon him has been unconstitutionally impaired; for if he is unable to-establish the additional facts necessary to a recovery against the new defendants he loses indemnity which he otherwise would have had. When the constitutionality of these Code provisions was originally upheld by the Court of Appeals (Hayes v. Davidson, supra; Hein v. Davidson, 96 N. Y. 175) they authorized a substitution only on the application of the indemnitors. Where the substitution is made on such application the indemnitors are estopped from denying that they stand in the very shoes of the sheriff, and “ 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 damage occasioned by his unlawful taking.” (Dyett v. Hyman, supra; McBride v. Tappen, 31 N. Y. St. Repr. 477.)

But where the indemnitors resist the substitution, as in this case, a very different question is presented. The indemnitors deny their liability on the bond,, and deny the commission of any acts which would render them liable with the sheriff as joint tort feasors. The Special Term must be assumed to have decided this claim against them, for it granted the application. From the order of the Special Term the plaintiff alone has appealed. The. question, therefore, which remains is whether the adjudication on the motion permitting the substitution is conclusive upon the indemnitors so as to preclude them from setting up by way of defense in this action the matters alleged in their affidavit. If the order is conclusive the plaintiff has no ground of complaint, though the indemnitors may have. But we are not prepared to hold that the order of substitution is conclusive on the new defendants. Ordinarily before the citizen can be amerced in his property he is entitled to have a trial according to the usual mode of proceeding in judicial tribunals. On a claim of this character indemnitors would be entitled to a trial by jury, and we doubt very much whether they can be compelled, to submit the determination of their rights to summary adjudication. This seems to be the opinion of the Appellate Division in the first department, in Levy v. Dunn (39 App. Div. 605), where it is said that the plaintiff is “ obliged affirmatively to establish the liability of the surety under the bonds for. the whole extent of the sheriff’s acts,, and be subjected to the possibility of a recovery against the indemnitor being' limited.” To say the least of it, the question of law is doubtful, and the plaintiff is subjected to no small chance of falling between the two stools, one the sheriff’s liability, the other that of the indemnitors. To this risk he should not be subjected.

The order appealéd from should be reversed, with ten dollars costs and disbursements, and application denied.

Ail concurred.

Order reversed, with ten dollars costs and disbursements,, and application denied. 
      
      §§ 1431 et seq.—[Ref.
     