Robertson v. Lawton , 91 Hun 67 ( 1895 )

MAYHAM, P. J.

This was a motion to set aside a judgment in favor of the plaintiff, against the above-named defendants, entered on the 21st day of September, 1894, and the execution issued i hereon on the same day, which Avas placed in the hands of the sheriff of Warren county at 8 o’clock in the forenoon of that day, mainly on the ground that the same was not executed by a levy on the property of the judgment debtor before the 24th day of the same month, on which last-mentioned day one Marcus M. Terry seized all the property of the judgment debtor liable to be taken on execution, under and by virtue of an attachment issued in his favor in an action brought by him against the defendants herein, and who claims on this motion that the execution issued on the judgment in favor of the plaintiff, as to his attachment, had become dormant before the property of the defendant was seized on such attachment. The affidavits used on this motion disclose that on the 24th day of July, 1894, the defendants herein made a general assignment, with preferences, to one Ezra Hartman, for the benefit of creditors, and that shortly thereafter several judgment creditors commenced actions to set aside the assignment as fraudulent as against creditors of the assignor; and, during the pendency of such action, orders were obtained by creditors of said defendants, by the terms of which the sheriff of Warren county was directed to sell at public auction the property assigned to Hartman, but which had been seized by the sheriff under the attachment above referred to; and that the sheriff did, on the 3d day of October, 1894, sell the goods so seized, for $3,410. On the 3d day of May, 1895, Messrs. Bussey & McLeod, judgment creditors of the defendants, recovered a judgment declaring said assignment made by defendants to Hartman void as against the creditors of the defendants. After satisfying the judgment of Bussey & McLeod, there remained in the hands of the sheriff the sum of $873.36, the proceeds of the sale of the property of the defendants made by the sheriff under the order above referred to; and the question here is whether that money shall be applied to the execution issued on defendants’ judgment, or to the execution issued on the attachment in favor of Terry.

No directions, except that contained in the execution, appear to have been given by the plaintiff or his attorney to the sheriff at the time of the delivery of the execution to him, or at any time thereafter; but the sheriff was informed by the plaintiff’s attorney that the defendants had made a general assignment, and that their property was in the hands of the assignee, and that he was about to commence an action to have the assignment declared fraudulent and void. No indemnity appears to have been demanded by the sheriff as a protection to him for the seizure of the assigned property, nor was any bond of indemnity offered to him by the plaintiff.

Upon these facts, the learned judge at special term held that the plaintiff’s execution, as between him and the execution issued on the Terry judgment, in which the attachment proceedings were had, was dormant, and that the execution issued on the attachment case had precedence, by virtue of a levy on the attachment, over that of the execution issued on the plaintiff’s judgment, and bases that finding apparently upon the idea, which he gathers from the affidavits, that the execution in the plaintiff’s judgment was not delivered to the proper officer to be executed.

It is true that the Code of Civil Procedure (section 1405) declares that goods and chattels of a judgment debtor not exempt from execution are bound by the execution from the time of the delivery thereof to the proper officer to be executed; but, the special term having found that it was not delivered to the sheriff to be executed, that, as against the process delivered subsequently to the same officer to be executed, the latter acquired precedence, by reason of the hazard taken in executing the doubtful process in a doubtful case, as against the less courageous and vigilant creditor, who failed to make an actual levy. We are inclined, assuming the facts to be as the learned special term found them, to hold his conclusion of law sound. We are therefore of the opinion that the order should be affirmed, on the opinion of the special term judge.

Order affirmed, with costs.

PUTNAM, J., concurs in result. HERRICK, J., concurs.