H. B. Koenig, Inc. v. Bigelow ( 1939 )

Submitted controversy determined in favor of the plaintiff, without costs. Memorandum: The sheriff levied, under an execution, upon the judgment debtor’s automobile. Before the actual levy but after having received the execution, the sheriff was informed that a third person held a chattel mortgage thereon. This mortgage, which was not filed as required by section 232 of the Lien Law, was void as against the plaintiff. (Lien Law, § 230.) The sheriff delivered the automobile to the chattel mortgagee instead of selling the same, as required by law, and is, therefore, hable to the plaintiff judgment creditor for the full amount that he was commanded by the execution to collect, the automobile being worth such amount. The fact that the mortgagor was in default in payments thereunder is immaterial. All concur. (Submitted controversy on a claim against the sheriff to recover damages sustained by plaintiff on an uncollected judgment.) Present — Sears, P. J., Crosby, Cunningham, Taylor and Dowling, JJ.