Sickles v. Sullivan — 47 N.Y. St. Rep. 82

Majority

p. 82

Daniel E. Sickles, Sheriff, Resp’t, v. David R. Sullivan, Rec’r, App’lt.

(Supreme Court, General Term, First Department,

Filed June 29, 1892.)

Headnote

Execution—Pledged property—Receiver.

The interest of a judgment debtor in goods pledged by him is subject to the lien of executions from the time they are delivered to the sheriff, which lien attaches to the surplus in' the pledgees’ hands on a sale of the goods and is not affected by the appointment of a receiver in aid of a junior execution.

Appeal from judgment entered after trial at special term.

F. R. Kellogg, for app’lt; D. P. Hays, for resp’t.

—In March, 1890, judgments in favor of a large number of people were entered in the office of the clerk of the city and county of New York against Louis Rosenberg & Ismar Baker, and at the same time executions were issued therein tó the sheriff. At the time of the issuing of the said executions there were in' the possession of Wilmerding, Morris & Mitchell' goods belonging to said Rosenberg & Baker, the judgment debtors, upon which said Wilmerding, Morris & Mitchell claimed a lien for advances. On the 2d of April, 1890, judgment was entered in the office of said clerk in favor of Bmil Oelbermann and Louis Domerich against said Rosenberg & Baker and the judgment duly ' docketed and execution issued to the sheriff.

On the 11th of April, 1890, the goods in question were sold "by Wilmerding, Morris & Mitchell, but not at a regular sheriff’s •sale; and the balance of the proceeds, after deducting advances, •expenses and charges, amounted to $856.01. On the 29th of April, 1890, an order was made in the action of Oelbermann, whose •execution was outstanding in the hands of the sheriff, for an ex■amination of the members of the firm of Wilmerding, Morris & Mitchell, and such steps were taken in those proceedings as re-

p. 83

suited eventually in the appointment and qualification of this defendant as receiver of the property of the judgment debtors above mentioned. Both the sheriff and the defendant caused demand to be made upon Wilmerding, Morris & Mitchell for the payment to them respectively of the sum representing the equity of Bose'n-berg & Baker in these goods; and this demand having been refused, each party to the present action commenced suit against Wilmerding, Morris & Mitchell to recover this fund. A motion having thereupon been made for an order of interpleader, and for permission to deposit the fund with the clerk of the court subject to the future determination of an action between the sheriff and the receiver, such order was granted and substitution duly made.

Subsequently the suit came on for trial at the special term, where it was decided that the fund should be awarded to tbe plaintiff, and judgment was entered accordingly with costs as against the defendant. From this judgment this appeal is taken.

It is claimed upon the part of the appellant that the defendant, by his appointment as receiver of the assets and effects of Bosenberg & Baker, became entitled to this fund in the absence of any prior lien attaching thereto on behalf of the sheriff. This is undoubtedly true; and the only question involved is whether a prior lien did not attach in favor of the sheriff by virtue of the executions held by him. The claim that no such lien did attach in favor of .the sheriff is urged upon the ground that the only method by which the sheriff acting under an execution can acquire a lien upon or interest in the judgment debtor’s equity in property pledged to a third person as security for money advanced is that pointed out in § 1412 of the .Code. What that section has to do with the question of lien it is impossible for us-to imagine. It relates entirely to the method in which a sale may be had of the interest of the judgment debtor in personal property lawfully pledged.

Section 1405 of the Code seems to dispose of the whole question, it appearing that the goods and chattels of a judgment debtor not exempt by express provision of law from levy and sale by virtue of an execution, and his other personal property which is expressly declared by law to be subject to levy by virtue of an execution are, when situated within the jurisdiction of the officer to whom an execution against property is delivered, bound by the execution from the time of the delivery thereof to the proper officer to be executed, but not before.

Therefore, the interest of the pledgor in the goods in the hands of Wilmerding, Morris & Mitchell became bound by the executions the moment that they came into the hands of the sheriff without any levy being made. If Wilmerding, Morris &'Mitchell sold the goods, and there was a surplus in their hands belonging to the judgment debtor, the executions attached to this surplus in precisely the same manner, and therefore the sheriff' was entitled to take it under the "executions as so much money. It is difficult to see how, by the appointment of a receiver in-aid of an execution, the lien of a prior execution upon the-property of- the judgment debtor can be overruled. Certainly

p. 84

.such a thing would be an anomaly in legal procedure. This being the view which we' take of the law relating to the case, we have not thought it necessary to refer to many of the facts which are claimed to be established by the findings of fact; the more particularly so as many of the findings are absolutely unintelligible.

We think, therefore, that the judgment appealed from should be affirmed, with costs.

Patterson, J., concurs.