Mills v. Thursby , 1853 N.Y. Misc. LEXIS 9 ( 1853 )

Edwards, Justice.

I think that the affidavit of the sheriff shows that a valid levy was made upon the personal property of the defendant before his death, and before the return day of the execution. But I am not prepared to say that there was a sufficient levy upon the real estate. It does not appear that any act whatever was done, showing that the sheriff intended to make such levy. On the contrary, I think that his affidavit shows that he did not intend to levy upon any other than the personal property. If the plaintiff insists that a valid levy can be made under an execution after the return day, I will hear a further argument upon that point. In the meantime, the motion to stay proceedings, under the levy made upon the personal property of the defendant, is denied without costs.