APPEAL by the plaintiff, The David Gilmour Door Company from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 30th day of October, 1911, upon the dismissal of the complaint by direction of the court at the opening of a trial at the New York Special Term.
Eugene M. Bartlett, for the appellant.
Francis A. O'Neill, for the respondent Shea.
Arleigh Pelham, for the respondents Shollenberger and Shollenberger & Co.
The plaintiff appeals from a judgment dismissing the complaint. The facts alleged in the complaint and the nature of the relief sought are set forth in the opinion of Mr. Justice LAUGHLIN and need not be repeated. As the complaint was dismissed before the introduction of any evidence, all the facts well pleaded in the complaint must be accepted as true. This, however, does not justify us in accepting the allegations of bad faith and fraudulent intent on the part of the sheriff, except as such charges are supported by well-pleaded facts. In effect what the plaintiff seeks is a judgment superseding the finding of a sheriff's jury, procured as provided in sections 1418 and 1419 of the Code of Civil Procedure, and a retrial of the
claims of ownership and damage made by the defendants Iroquois Door Company, Mary P. Shollenberger and Shollenberger & Co.
It is well settled that the action of a sheriff's jury in determining a claim of title to property seized by the sheriff under execution or attachment is not a judicial determination and is not subject to review by motion or otherwise. ( Cohen v. Climax Cycle Co., 19 A.D. 158; Shaw v. Dunn, 122 id. 736.) It is not conclusive upon any one as to the title claimed (Minor v. Gurley, 81 A.D. 586), and its only office is to afford justification to the sheriff for surrendering the property to the claimant unless indemnified by the plaintiff who had sued out the execution or the attachment. If the sheriff has been guilty of fraud or bad faith in inducing a finding in favor of fictitious claimants, the inquisition will afford him no protection, and he will release the property levied upon at his own peril, and may be called upon in appropriate action by the execution or attachment creditor. If it was the claimants who were guilty of fraud in asserting ownership of the property, the plaintiff has ample remedy under sections 2432 to 2463 of the Code of Civil Procedure. If the sheriff was free from fraud or bad faith in procuring the inquisition to be returned he is entitled by law to demand indemnity from the judgment creditor and this court has no authority to fix the amount of such indemnity. The Code provides how such amount shall be determined. We are unable to see, therefore, any theory upon which this action can be maintained.
It is quite true that a court of equity has general power to relieve against fraud, but to invoke that power it must be made to appear not only that fraud has been committed but that the law has provided the plaintiff with no other adequate remedy. As already pointed out, the plaintiff has an adequate remedy at law, if fraud was committed, whether the sheriff was or was not a party to the fraud.
The complaint was rightly dismissed and the judgment must be affirmed, with costs.
INGRAHAM, P. J., and CLARKE, J., concurred; LAUGHLIN and ...