#### Hugh J. Grant, Late Sheriff, Resp’t, *v.*Erastus T. Tefft *et al.,*App’lts.1

*(New York Common Pleas, General Term,*

*Filed February 10, 1890.)*

Ikdemktty—Defense—Insteuctions by utoemnitobs.

The sheriff having been indemnified, by defendants and other judgment creditors, sold under various executions and paid defendants the amount of their execution. In an action to recover expenses incurred by him in an action brought against him by reason of said sale, defendants alleged that at the time of giving the bond they told the sheriff that they were preferred in an assignment by the debtor and did not wish it attacked, and also notified the sheriff not to defend the action for wrongful conversion. *Held,*thatin face of their bond of indemnitytheir oral notice was nugatory; that the defense of the action could not be avoided by the sheriff and that defendants were properly held liable for the expense thereof.

Appeal from judgment of the general term of the city court, of New York, affirming judgment in favor of plaintiff.

Action upon a bond of indemnity given to plaintiff as sheriff ’ Plaintiff held three executions against one Yon Der Linden, one of which was in favor of defendants Tefft, Weller & Co. Upon, being indemnified upon all these executions he sold the property and paid to defendants the amount of their execution. He was-afterward sued for wrongful conversion by the assignee of Yon. *497Der Linden, and in the defense of such action incurred and paid a counsel fee of $1,000. This action was brought to recover $325, being defendants’ proportionate share of such expense. Defendants disclaimed any liability therefor, claiming that the bond was given subject to conditions and that they had notified the sheriff not to defend the action.

*Roscoe IT. Gbanning,*for app’lts ; *David Leventritt,*for resp’t.

1

 Affirming 26 N. Y. State Rep., 102.

Larremore, Oh. J.

Appellants could not succeed in this action without being allowed to occupy two absolutely inconsistent positions. They had formerly indemnified the sheriff, and he, relying upon their bond and those of other judgment creditors, sold the property which he had before levied on and collected and paid over to them the amount of their claim. But, at the-time of giving such bond, defendants allege that they represented to the sheriff that they were preferred as creditors in an assignment which, by that time, had been made by the judgment debtors, and that they did not wish to attack such assignment. They also aver that later, when the action was brought by the assignee against the sheriff to recover damages for the wrongful conversion of the very property which defendants had indemnified the sheriff to sell, they notified the sheriff that they did not wish such action defended. These matters they seek to set up as defenses in the present action to recover from them, under their bond of indemnity, their proportionate share of the expense incurred by the sheriff in defending such action. A mere statement of their position is sufficient to make it plain that no court could sanction such a double-face policy on the part of any litigant. Defendants desired to have the benefit of the sale under execution, in order to secure prompt payment of their claim. On the other hand, as the ultimate payment thereof was secured by the preference in the assignment, they propose to escape reimbursing the sheriff for the-liabilities and expenses incurred in carrying through the execution sale and defending himself from the consequences thereof. The legal status of the matter is simply that, in the face of the. bond of indemnity, their oral notices were meaningless and nugatory. By indemnifying the sheriff they elected to collect the debt, by execution, and this action on their part necessarily contemplated the incurring of every liability legitimately arising out of the pursuit of that remedy. In company with the other judgment creditors, they put upon the sheriff the obligation to perform certain acts involving personal risks, and, after he had started upon such course, he could not withdraw.

The sheriff having sold the property, relying upon his bonds, the defending of the action brought by the assignee was something which he could not avoid. The expense incurred in such defense was one of the charges fairly covered by said bonds, and defendants are very properly compelled to pay their proportionate share thereof.

For the reason stated in the opinion of McAdam, Oh. J., at the general term of the city court, we think there was sufficient in the *498tease to support the finding by the trial judge as to the reasonable value of the services rendered.

The judgment appealed from should be affirmed, with costs.

Bookstaver and Bischoff, JJ., concur.