The property in suit and for the value of which the plaintiff, as substituted assignee, claims to recover against the sheriff, consisted of a stock of goods and fixtures contained in the store 28 "West Twenty-third street, occupied by Duncan A. Gramc. lie had .previously made a general assignment for the benefit of his creditors, to a predecessor of tiie plaintiff, who commenced this action as substituted assignee. After the assignment, the property was seized by the sheriff on the 4th of January, 1884, under four attachments and one execution, issued in favor of as many different creditors. The sheriff, on the fourth of January, seized and took possession of all the stock and fixtures contained in the store'previously occupied by the. debtor. After that, and on the 12th of January, 1884, another attachment was issued to him, and still another on the twenty-sixth of the same month, and on the fourteenth of that month another execution was issued to him against the same debtor. Three other executions were also issued and the sheriff finally held possession of the property under all the attachments and the five executions. The creditors for whose benefit the property was seized by the sheriff under the attachments, and the executions issued on the third and fourteenth of January, severally delivered to the sheriff bonds of indemnity to indemnify and save him harmless from loss, by reason of his holding the property against the claim of the assignee. These bonds were given at different times, but they were all stated to have contained the same condition. And under and by virtue of the indemnity so provided, and the process issued to the sheriff, he afterwards sold the property seized, with the exception of eleven cases of goods of the value of $4,000, which were returned to the plaintiff. After this indemnity had been provided for the sheriff, the attaching creditors and the creditors in the two executions, who executed the bonds with their sureties, applied to the court to be substituted as the defendants im the action in place of the sheriff, under the authority of section 1421 of the Code, and an order to that effect was made by the court, placing the applicants in the legal position, where they themselves were at liberty to take charge of the defense of the action in their own behalf.
It has been objected that the sureties to the sheriff, severally
Neither of the bonds was given to protect him from such liability as to any specific or divisible portion of the property; but the language of each of the bonds is shown to have been so broad as to include all the property which the sheriff had seized. Bor that reason it cannot be important to inquire whether he had made an excessive seizure or taken more property into his possession than the attachments and the executions authorized him to take, for by these bonds the parties to them took upon themselves the entire responsibility of saving the shei’iff harmless from loss for taking all the property, as that had been done under the processes issued to him. Bor where parties, even after the seizure of property by the sheriff, furnish him with indemnity against liability for his acts in taking, holding and disposing of it, they make themselves parties to the wrong, if a wrong was committed by the seizure, and liable for the
Whether, therefore, the sheriff seized and sold no more of the property 'than was necessary to satisfy the debts mentioned in the attachments and executions, or made an excessive seizure, it is not necessary to inquire, for the persons executing the several bonds assumed the responsibility of all that he had dóne in that respect, and subjected themselves to the liability of saving him harmless from the legal consequences of his acts. They practically combined the seizures which had been several, and previously made, and assumed their consequences as one act by means of the bonds executed and delivered to the sheriff. And the case was then presented substantially the same as a single seizure under the attachments and executions, which brought it within the spirit, if not literally within the language of section 1421 of the Code. From that time the creditors and their sureties were all united in maintaining and protecting the act of the sheriff in holding possession of and afterwards selling the property, and if any wrong or legal liability was created by his acts in doing that, the parties to each of these bonds became jointly liable for the consequences of those acts, and that presented a case within this section of the Code. (Malcom v. O'Reilly, 89 N. Y., 156; Hessberg v. Riley, 91 id., 377; Hein v. Davidson, 67 How., 148.)
It has been objected to the order that it was not made to appear by the affidavits in support of the motion that the bonds were given previous to the commencement of this suit. But if that were necessary a strong probability arises that they were so given. The first was executed and delivered on the 9th of January, 1884, and the last on the 13th of February, 1884, and it was not intimated in the affidavit made by the plaintiff that the suit against the sheriff had been commenced before that time. . If that was the fact, and any advantage could be derived from it by stating it, the plaintiff should at least have suggested it in the affidavit made by him for the purpose of opposing the motion. That was not done; neither does it appear that any objection was taken to the omission of the statement on the hearing of the motion which resulted in the order. If it had then been made, proof on the subject could havé been
It was also objected that the order should' not be made without requiring a stipulation from the indemnitors, allowing the statements or admissions made by the sheriff to be .given in evidence against them upon the trial. But the right to give such testimony cannot be an important one to the plaintiff. For proof of the fact can be readily given that the sheriff did seize the entire stock and fixtures contained in the store No. 28 West Twenty-third street, and the bonds given by the applicants,.even though less in the aggregate than the value of the property, subjected them to liability for all the consequences of such seizure, ahd these facts, together with proof of the value of the property seized, will be all that can be required to make out the plaintiff’s right to recover, in the first instance, and it will be for the defendants themselves to establish the fact, if that can be done, that they were entitled to seize the property, notwithstanding the preceding assignment of their debtor. The same evidence required to present the case against the sheriff, with the additional fact of the execution and delivery of the bonds, will present it completely and effectually against the parties executing those bonds, and no important right or interest of the plaintiff will be in any respect jeopardized or changed by substituting those parties as defendants in the action, in place of the sheriff. The fact that the sheriff also acted under three other executions in seizing and holding the property is a circumstance of no importance. For, as to all the property which he took, the parties executing the bonds rendered themselves jointly liable to the plaintiff.
The order, for these reasons^ was right, and it should be affirmed, with ten dollars costs and the disbursements.