Dyett v. Hyman

• Decision Date: 22 December 1891
• Citation: 129 N.Y. 351,29 N.E. 261
• Parties: DYETT v. HYMAN et al.
• Court: New York Court of Appeals Court of Appeals

129 N.Y. 351

29 N.E. 261

DYETT

v.HYMAN et al.

Court of Appeals of New York.

Dec. 22, 1891.

Appeal from common pleas of New York city and county, general term.

Action by Charles H. Dyett against Samuel P. Hyman and others. A judgment for plaintiff, rendered at the trial term, was affirmed by the general term. Defendants appeal. Affirmed.

Alex, Blumenstiel, for appellants.

B. F. Einstein, for respondent.

RUGER, C. J.

The plaintiff brought trover, as assignee in a general assignment by Kapp for the benefit of his creditors, against the defendants Hyman, Morris, Stroock, and Ballin, to recover damages for the taking and conversion of certain personal property. The defendants admitted the execution of the assignment, but justified the taking by a sheriff under certain attachments issued against the property of said Kapp by a justice of the supreme court, and an averment that the property taken belonged to said Kapp. The allegations of the answer were probably insufficient to raise the question of fraud in the assignment, under the authorities, (Weaver v. Barden, 49 N. Y. 287;) but, inasmuch as the parties proceeded to try that issue without objection, we regard it as legitimately in the case. The claim that the assignment was void for fraud, and conferred no title upon the plaintiff, constituted the only affirmative defense stated in the answer. The execution of the assignment and the taking of the property by the sheriff were specifically alleged in the complaint and admitted by the answer. Upon the trial the plaintiff proved the execution and delivery of the assignment; the taking of the property from plaintiff's possession on September 1, 1884, by the sheriff on attachment in favor of the defendant Hyman and others, and its subsequent sale by him, and the execution and delivery of a bond to the sheriff, dated September 2, 1884, signed by Hyman as principal and Morris and Stroock as sureties, indemnifying him against all loss or damage in consequence of the levy, seizure, and sale on Hyman's attachment of the property referred to in the complaint. The plaintiff also proved a judgment dated December 13, 1887, rendered in a creditors' action in the supreme court brought by the defendants Hyman and Morris against Kapp and Dyett, the assignor and assignee, in favor of the defendants therein, wherein it was adjudged that the assignment of Kapp to Dyett was not made with intent to hinder, delay, or defraud creditors, and was, in all respects, valid as against said Hyman and Morris and all other creditors of said Kapp. This judgment operated as conclusive evidence of the validity of the assignment, and estopped the defendants from showing anything to the contrary in this action. It does not, therefore, admit of any doubt but that the plaintiff made out an unexceptional case to recover against the defendants Hyman and Morris. Their liability for the original trespass committed by the sheriff was presumptively established by their approval and satisfaction of his act, manifested by the execution of a bond of indemnity to him. The sale of the property was secured by this bond, and the defendants were thereby shown by have exercised a controlling authority over the action of the sheriff in procuring the consummation of the wrong complained of, and thereby made themselves liable as principals for the original unlawful taking. Herring v. Hoppock, 12 N. Y. 411;Ball v. Loomis, 29 N. Y. 412;Ford v. Williams, 13 N. Y. 584. The defendants, who thus participated in the original wrong, were jointly and severally liably with the sheriff for the damages occasioned by the trespass. The plaintiff could have elected to sue one or more of the defendants, and it did not operate as a defense to the action brought by him to show that there were other persons liable for the same trespass, who were not joined as defendants in the action. Wehle v. Butler, 61 N. Y. 245;Rose v. Oliver, 2 Johns, 365.

It is urged by the appellants that no cause of action was made out against the defendants, for the reason, as is claimed, that they had the right, as indemnitors, to be substituted as defendants in the place of the sheriff, (Code Civil Proc. §§ 1421¹–1423;) and they argue that, in case such substitution had been permitted by the court, the indemnitors would have been liable for such damages only as they would have been subjected to in an action by the sheriff upon their bonds of indemnity, and that the same rule of liability should be applied to them in this action. This claim is founded in a misapprehension of the meaning and effect of the provisions of the Code referred to, and of the extent of the liabilities incurred by joint wrong-doers. Parties who are jointly and severally liable to the owner for damages arising out of an unlawful taking of property, cannot by any arrangement between themselves prejudice the rights of an injured party in the prosecution of those who committed the trespasses upon his property. Hammer v. Wilsey, 17 Wend. 92;Williams v. Sheldon, 10 Wend. 654. Such arrangements are res inter alios to which the owner has never consented, and by which he cannot be bound. The sections of the Code referred to simply authorize the indemnitors to apply to the court for permission to defend an action in the place of the sheriff, and do not, in any respect, vary the rights of the plaintiff in the prosecution of his action. If the owner on the trial proves good cause of action against the sheriff, the indemnitors, by virtue of such substitution, become liable in his place for the damages occasioned by his unlawful taking. If the act of permitting the substitution impaired in any material respect the right of the owner to recover in the action, it would furnish a conclusive reason why the substitution should not have been permitted. The plaintiff's cause of action against a wrong-doer is a right of property, and can be taken from him only by due process of law. If these provisions authorize the court to deprive him of a lawful remedy against one and compel him to prosecute others, against whom he has no cause of action, they are open to the objection that they authorize the taking of property in violation of the provisions of the constitution...