I concur in the reversal of this order. The present case differs altogether from that of Levy v. Dunn (39 App. Div. 605). In that case it -was held that under its peculiar circumstances and the attitude *252|n which the indemnitor stood to the sheriff, substitution should not be ordered because the plaintiff would not secure that complete and affective remedy to which he was entitled by reason of- the wrongs alleged to have been perpetrated against him by the sheriff. There, both the plaintiff and the indemnitor objected to the substitution, -the indemnitor insisting that it was not an original trespasser liable with the sheriff for the sheriff’s acts, those acts being in excess of the sheriff’s lawful right and being wanton in their character. The Indemnitor’s position was that as between itself and the sheriff the liability was solely upon the bond; that inasmuch as that bond was -pot given against specific acts, but was only for general indemnity, -|n an action between the sheriff and the indemnitor, the recovery would be limited to the amount of the bond, if any recovery could "be had at all; that the sheriff could not of his own motion shift the whole responsibility for all his acts upon the indemnitor; that on ihe substitution of the indemnitor, no question could be litigated between the plaintiff and it, except such defense as the sheriff himgelf would have to the cause of action asserted by the plaintiff; -that thus the indemnitor would be deprived of its defense and would be visited with á liability which it never incurred and upon a relation to the sheriff’s acts which it did not sustain, either as matter a£ law or fact. ! The plaintiff Levy contended that he as a stranger to all matters antecedent to the sheriff’s trespass could not be embarrassed in the pursuit of his remedy by all these matters that were .extraneous to Ms cause of action and foreign to the enforcement of bis rights. The whole point of the case of Levy v. Dun was that ■there being this grave question of the' liability of the indemnitor as &n original tort feasor, and the bond which he gave to the sheriff being utterly insufficient to protect him, if for any reason it should be held that the liability was limited to the extent of the bond, a substitution should not be ordered. The questions arising in the L&'oy case are not in this. There is nothing in that case which indicates that the original liability of an indemnitor to a party Injured by the sheriff’s trespass is upon the bond alone.
O’Brien and McLaughlin, JL, concurred.
Order reversed, ■ with ten dollars costs and disbursements, and fpotion graiff'A with ten dollars costs.