
    D. Buchner & Co., Appellant, v. Edward J. H. Tamsen, as Sheriff of the City and County of New York, Respondent. Louis Ettlinger, Indemnitor, Respondent.
    
      Action against a sheriff— executors of his indemnitors cannot be substituted, in his stead—the statute construed in analogy to the common law.
    
    The provisions of section 1421 of the Code of Civil Procedure, permitting the court, upon the application of the sheriff, to grant an order substituting his indemnitors in his place as defendants in an action brought against him, do not justify the substitution of executors of the estates of deceased indemnitors — the statute, being in derogation of the common law, should, when susceptible of-two interpretations, be construed when practicable in conformity with it.
    In any event the procedure to collect a judgment from an estate being very different from that obtaining in the collection of judgments against individuals, the substitution of the executors of deceased indemnitors in place of the sheriff in such a case would be an improper exercise of power by the court.
    Appeal by the plaintiff, D. Buchner & Co., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of February, 1898, resettling an order entered in said clerk’s office on the 10th day of January, 1898, which granted the defendant’s motion to substitute in his place one indemnitor and the executors of the estates of two deceased indemnitors, and also from the refusal of the court to resettle the said order of January 10, 1898, in the form proposed by the plaintiff.
    
      Franklin Bien, for the appellant.
    
      Charles L. Kingsley, for the sheriff, respondent.
    
      Albert W. Venino, for the indemnitor, respondent.
   Van Brunt, P. J.:

On or about the 24th of December, 1896, in an action in the Supreme Court in which Martin H. Lehmaier and others were plaintiffs and David Buchner was defendant, a warrant of attachment against the property of said Buchner was duly issued and directed -to the defendant as sheriff of the city and county of New York. By virtue of such attachment the defendant levied and attached certain goods and chattels. The plaintiffs claimed the same, and thereupon said Lehmaier caused to be made and executed an undertaking to indemnify the said sheriff for the detention thereof by Albert Sichel, Louis Ettlinger and Julius Ehrman as sureties. This action was subsequently brought against the sheriff to recover $50,000 damages claimed to have been sustained by the plaintiff by reason of the alleged detention of the property levied upon as aforesaid. The sureties Sichel and Ehrman having died, the only surviving indemnitor was Louis Ettlinger. The defendant, the sheriff, in December, 1897, made a motion to substitute the surviving indemnitor and the executors of- the estates of the two deceased indemnitors, which motion was granted, and an order entered thereupon. Subsequently this order was resettled, and from the resettled order and from an order refusing further resettlement this appeal is taken.

- It seems only to be necessary to consider one proposition. The statute substituting indemnitors (Code Civ. Proc. § 1421) is in derogation of the common law, and as was said in Hayes v. Davidson (98 N. Y. 22) “If the terms in which it is couched are susceptible of two interpretations, that one ought to be adopted which conforms most nearly to the rules of the common law and encroaches least upon the individual rights affected by it.” The provision is that, where application is made by the sheriff, the court shall grant an order substituting the indemnitors as defendants in the action in the place of the officer. In consequence of the death of the two indemnitors this it is impossible to do. The executors of the estates of the deceased indemnitors were not indemnitors. The liability of the principal falls upon them as administrators of his estate, but they can in no sense be called indemnitors. The mere fact of their having been mentioned in the bond of indemnity gave no greater scope to the bond than if it had been silent in that respect. The indemnitor binds his estate by the execution of the bond; but his estate does not thereby become a party to the bond. His executors did not become indemnitors, because they did not execute the bond and could not have bound the estate if they had so done. It seems to be clear, therefore, that the court was not justified in substituting the liability of the- estates of the deceased indemnitors for that of the sheriff.

Even if it had the power it seems to us that it would have been an improper exercise of such power upon the part of the court, as the procedure to collect a judgment against estates is very" different from that which obtains in respect .to judgments against individuals. The language used in Hayes v. Davidson (supra) is again apt: “ The cases must be rare when any useful purpose can. be served by depriving a party of his lawful remedy against the- individual who-injured him, and compelling him to litigate his demands with persons-who were not apparently participants in the wrong out of which the* action arose, and as to whose- liabilities and their extent many embarrassing questions may arise.”

The order should be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

Barrett, Rumsey,. Ingraham and McLaughlin, JJ., concurred..

Order reversed, with ten dollars costs and" disbursements, and motion denied, with ten dollars costs,  