Opinion
January Term, 1897.
Hugo Hirsh, for the appellant.
Josiah T. Marean, for the respondents.
By this action the defendant is charged with taking and converting to his own use a quantity of brick. The property was taken by the defendant, as sheriff, by virtue of requisitions in two actions, one brought by Milton A. Fowler against John and James Glanfield, and the other by Alonzo and William Covert against the same defendants, to recover the possession of the property in question. Thereupon the plaintiffs in the present action, claiming the right to the possession of the property, delivered to the sheriff an affidavit, as provided by section 1709 of the Code of Civil Procedure, and the plaintiffs in those two actions furnished to the sheriff indemnity, as provided in the same section.
The question presented is whether the defendant, upon his motion, may be relieved from the defense of the action by substitution of his indemnitors as defendants. The only statute upon the subject is that "the sureties are entitled to be substituted as defendants in an action brought as prescribed" in section 1710 of the Code of Civil Procedure "as if the chattel had been levied upon by virtue of an execution." (Id. § 1711.) As the plaintiffs proceeded to assert their claim to the property with a view to having it delivered by the sheriff to them, pursuant to the statute (Id. § 1709), and notwithstanding the conflicting affidavits as to the question whether the property was in the possession of the defendants in the replevin actions at the time it was taken by the sheriff by virtue of the requisitions, it is for the purpose of the questions on this review assumed that it was then in the possession of the defendants in those actions, and that this action is one brought as prescribed in such section 1710.
The power of the court to substitute sureties as defendants in an action within that section is dependent upon the statute before referred to, which does not provide that they may be required to submit to such substitution, but merely gives them the right to assume that relation to such an action brought against their principal, whom they have undertaken to indemnify. The ultimate liability of the sureties, in the event of recovery by the plaintiff in an action where the defendant is so indemnified, furnishes some reason why it may be desirable for them nominally and in fact to have the control, as well as the responsibility of the defense. This we have seen is their right. And the plaintiff can make no effectual objection to its exercise. ( Hein v. Davidson, 96 N.Y. 175.)
The statute, however, is in contravention of the common law, and will not by construction be extended beyond the plain import of its terms. The plaintiff in such case cannot be required, on application of the defendant, to submit to his discharge and the substitution of his sureties as defendants. It is their right alone and is to be granted by the court (without the consent of the plaintiff) only on motion made by them or in their behalf. It does not appear that the defendant's indemnitors elected or consented to take substitution. It is true that service of the motion papers was admitted by attorneys who assumed to represent the sureties, but this did not purport their consent, nor does it appear that the sureties even consented that the motion should be granted; and it may be that, so far as they were concerned, no consent on their part was necessary to charge them with the effect of an order substituting them as defendants. ( Dyett v. Hyman, 129 N.Y. 351.) They were not represented in court upon the hearing of the motion. It apparently was made in behalf of the defendant only, and, being resisted by the plaintiff, was properly denied.
In relation to indemnitors of a sheriff on account of the levy by him of an execution upon a chattel, it may be observed that the provision of the statute on the subject, as it existed at the time of the adoption of section 1711, was to the effect that the sureties might apply to the court to substitute themselves as defendants in an action brought against the sheriff, and that afterwards, in 1887, the right to have his sureties so substituted was by amendment of the statute extended to the officer. (Code Civ. Proc. § 1421.) This amendment has no bearing upon the construction of the provision of section 1711.
The order should be affirmed.
All concurred.
Order appealed from affirmed, with ten dollars costs and disbursements.