PRYOR, J.
Upon a judgment in an action by Shieck against Schmidt, Gorman, as sheriff, levied on property in the possession of Schmidt; the plaintiffs herein made claim to the property and brought replevin for its recovery, and thereupon Shieck, Offerman and Selje executed a bond of idemnity to the sheriff. The motion is by these indemnitors to be substituted as defendants in place of Gorman, the sheriff. An order of substitution at Special Term was affirmed by the General Term of the City Court, and from that order of affirmance an appeal is taken to us.
The order of substitution was entered the 20th of September, 1892. But, the indemnitors had noticed and withdrawn a previous application for substitution, namely, on the 12th of October, 1891. It further appears by the record, that, on the 17th of June, 1892, before any application for substitution, judgment by default had gone against the sheriff-defendant, and execution thereon issued, that the indemnitors had no knowledge of the default, judgment or execution, until late in the evening of August 15, 1892, "when they were notified by mail that judgment had been entered, and that unless the same was adjusted the sheriff would pay the same on the seventeenth."
No explanation is given of the withdrawal of the twelfth of October motion for substitution, but the obvious inference is that it was because of the indemnitors' reliance upon the good faith and diligence of the sheriff in defending the action. Now that their confidence is disappointed they seek an opportunity of protecting their rights.
Being amply indemnified, the sheriff is in no peril from the action, and entire loss, if any there be, must be borne by the indemnitors. Their answer discloses a valid defense, and in common justice they should have their day in court to make good that defense — especially since no question is made as to their sufficiency to respond in damages to the plaintiffs.
Upon the facts before us we are unable to say that, in granting the order of substitution, the court below failed to exercise a fair discretion. Hayes v. Davidson, 98 N.Y. 22.
An order of the City Court opening a default is not appealable to us. Keller v. Feldman, ante, page 179. But appellants urge that the default of the sheriff was unexcused and inexcusable, and this very fact, namely, that the default was willful, appears to us as sufficient reason for permitting the parties who are not responsible for it and who alone are afflicted by its consequences, to come in and make defense.
Again, the appellants contend that in opening the default the court below committed legal error in this, that the sheriff, then the only defendant, as dominus litus alone had the carriage of the litigation, and that the indemnitors, strangers to the action, had no right to control its conduct. The answer is, that the indemnitors were the parties really interested in the defense; that the law allows them to intervene for the protection of their rights, and that the same order which opened the default admitted them as parties to the action.
Order affirmed, with costs.
BOOKSTAVER and BISCHOFF, JJ., concur.
Order affirmed.