O'Brien v. Merchants' Insurance

16 Abb. Pr. 212, 48 How. Pr. 13

• Court: The Superior Court of New York City
• Decided: October 15, 1874
• Status: Published

Opinion

C turns, J.

It appears, from the papers, that the granting leave to the sheriff to discontinue these suits commenced by him on behalf of sundry attaching creditors of one Candler, to collect claims in Candler’s favor, on policies of insurance, would prejudice Candler’s interest in any surplus that might be due to him after the claims and costs of the attaching creditors were paid in full.

The effect of such a discontinuance, it is claimed, and seemingly with reason, would be to defeat Candler’s recovery, from the insurers, of such surplus, by reason of the limitations as to the time in which he can sue.

The provisions of the Code (§ 232), limiting the right of the sheriff to discontinué this class of actions, except “at such times, and upon such terms, as the court or judge may direct,” is evidently designed for the protection of the parties interested in the debts attached ; and that there shall be no discontinuance, on the part of the sheriff, of actions that will inure to the injury of such parties,

I think it is the duty of the sheriff to prosecute these suits to judgment; and when, as provided in subdivision 4 of section 237 of the Code, “the judgment and all costs of the proceedings shall have been paid, the sheriff, upon reasonable demand, shall deliver over to the defendant the residue of the attached property, or the proceeds thereof.”

The motion is denied, without costs.