Krauss v. Merklee , 103 N.Y.S. 192 ( 1907 )

Davis, J.

This action is brought to recover on a bond given by the defendant the Fidelity and Deposit Company to the defendant Frank C. Merklee, a city marshal. The plaintiffs are judgment creditors of Joseph Newman. In their action against Newman they had obtained a warrant of attachment under which the defendant Merklee had taken possession of an automobile as the property of Newman. Third parties claimed the property seized and, upon the execution and delivery of the bond sued upon here, the marshal surrendered possession. The court rendered judgment against Newman; execution was issued and returned unsatisfied, the marshal having parted with the property seized under the attachment. This present action was therefore brought on the bond. The evidence shows that, although the seized property was claimed by a third party, the bond does not run to the plaintiffs, as provided in section 85 of the Municipal Court Act, but to the marshal alone; and it is conceded by the plaintiffs that this action cannot be maintained under that section. But plaintiffs contend that the action is authorized by sections 1421—1425 of the Code of Civil Procedure, those provisions being made applicable to municipal courts by section 304 of the Municipal Court Act. An examination of the terms and conditions of the bond in question will show that the plaintiffs have no right whatever to enforce it. It recites the issuance of the warrant of attachment against the property of Newman, and its delivery to Merklee as marshal. It does not recite any seizure, but it does recite that certain goods that appear to belong to the defendant Newman of the value of $550 have been claimed by some other party or parties. The defendant- corporation then undertakes in the sum of $1,100 “ to well and truly save, keep and bear harmless and indemnify the said Frank C. Merklee, as Marshal of the City of New York, his successor or successors, and any- and all persons aiding .or assisting him in the premises, from all harm, trouble, damages, costs, suits, actions, judgments and executions that shall or may from time to time arise, come or be brought against him, them or any of them, as well as for the renting and making sale in and by virtue of said execution of all or any goods and chattels, which he or they shall or may adjudge to belong to the said Joseph ¡Newman, as well as in entering any shop, store, building or other premises, for the taking of such goods and chattels, then this obligation to be void; otherwise to remain, etc.” It will be observed that this bond indemnifies the marshal for seizing, keeping or selling property which, in his judgment, belonged to the defendant ¡Newman, and not for delivering it to a third party claimant. In form it is a bond such as would be given to the marshal by a plaintiff to protect the marshal in holding on to property seized at the instance of a plaintiff. It nowhere appears in this action that the marshal has suffered any damage by reason of the seizure of property deemed by him to be ¡Newman’s property. On the contrary, if he suffers at all, it will be because he surrendered seized property to a third party contrary to the instructions of his warrant and without securing himself by a proper bond. Sections 1421 to 1425 of the Code of Civil Procedure have no application to the facts of this’ case. Those sections refer to actions against public officers to recover a chattel levied upon by attachment or execution, or to recover damages resulting from levies or sales thereunder. This action- comes within neither class. In view of these considerations we think the plaintiffs have no cause of action on the bond. If the marshal acted improperly in surrendering the property and was aided and abetted in that act by the other defendant to the damage of the plaintiffs, it may be that the defendants would be jointly and severally liable under the rule laid down in Dyett v. Hyman, 129 N. Y. 351.

The judgment is reversed and new trial granted, with costs to appellants to abide the event.

G-ildebsleeve and Hektbiok, JJ., concur.

Judgment reversed and new trial granted, with costs to appellants to abide event.