Bishop v. Baxter

3 Daly 176

• Court: New York Court of Common Pleas
• Decided: July 15, 1869
• Status: Published

Opinion

Brady, J.

This motion must be denied. The statute,. Code, § 216, is designed for the protection of the sheriff, and when a claim of title is made by any person other than the defendant or his agent, to the property in dispute, the plaintiff must indemnify the sheriff. Such claim may be interposed by the third person as an agent on his behalf. In this case the claim is interposed through the agent of the third person, but such agent swears that he is duly authorized to do what he has-done. There is no summary way of investigating the truth or Iona fides of the alleged agency or claim. The statute is imperative. When a claim is interposed, the sheriff is entitled to-indemnity. To hold that such a claim could not be set up by an agent of a third party, would be to strictly construe a remedial statute, and which would be in hostility to well established rules of construction. The doctrine of facit per aUum facvb per se applies to the section of the Code already mentioned, and the claim therein allowed to be made, may be put in by an agent. The statements made in the plaintiff’s deposition militate against the good faith of the agent’s acts, and make the construction given to the section under consideration a seeming hardship. The plaintiff, however, gave sureties when the action was commenced, and they would doubtless be satisfactory to the sheriff on the subject of indemnity.

Motion denied.