Shaw v. Dunn , 107 N.Y.S. 777 ( 1907 )

Houghtoh, J.:

The plaintiff obtained an attachment and delivered the same to the sheriff of New York county, who levied upon certain railroad bonds alleged to belong to the defendant. A third party made claim to the bonds, and thereupon the sheriff impanelled a jury to try the validity of such claim. By their verdict the jury found that the bonds belonged to the claimant at the time of the levy, and fixed their value.

The plaintiff claimed that the inquisition was improperly conducted, and moved at Special Term to set aside the verdict of the jury and to enjoin the sheriff from releasing the bonds from the levy and from delivering them to the claimant. An order was made restraining the sheriff from such delivery on condition that the plaintiff execute and deliver to him a surety company indemnifying undertaking in the sum of $45,250.

The motion should have been denied.- There is no provision of law allowing a review, by motion or otherwise, of the action of a sheriff’s jury impaneled to try the validity of a claim of a third person to property attached. (Cohen v. Climax Cycle Co., 19 App. Div. 158.) .

Such a jury is permitted by sections 657 and ,658 "of the Code of Civil Procedure to be impaneled to try such a claim for the purpose of enabling the sheriff to demand from the plaintiff indemnity against the claim of a third party. Unless such indemnifying undertaking be given the sheriff is permitted to deliver the property to the claimant; and if it be given he must retain the property under his levy. Section 658 prescribes the kind of undertakings the kind of sureties, and how they shall justify, and before whom and what notice shall be given. '

The plaintiff could have given an undertaking with two sufficient-sureties who satisfactorily justified, and it was improper to confine him to an expensive surety company bond even if the order was otherwise proper.

The proceeding' is plainly stated in the sections of the Code referred to, and complication has arisen from the plaintiff mistaking his right to move to -set aside the verdict of the sheriff’s jury. •

The better way to clear up the. matter is to reverse the-order and thus remit the plaintiff to the practice prescribed by the Code.

The order should be reversed arid the motion denied, without costs.

Patterson, P. J., Ingraham, McLaughlin and Clarke, JJ., concurred. " . .

Order reversed and motion denied, without costs..