Hyperlawhypertext legal database Aliger v. Keeler 15 N.Y. Sup. Ct. 125

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Aliger v. Keeler

15 N.Y. Sup. Ct. 125 Court N.Y. Sup. Ct. English

Judges Present' — MulliN, P. J., Smith and Taloott, JJ.

Delivered by E. DaewiN Smith, J.:

Contents

Majority

p. 125
WILLIAM ALIGER, Respondent, v. EBENEZER KEELER, Appellant.

Headnote

Beceiptor — right of — has a lien for his fees.
A constable levied on certain property under a judgment in favor of the defendant, against the plaintiff, and committed the property to the defendant as a receiptor. Held, that the latter acquired a valid lien upon the property, for his just and lawful charges as such; that payment of the judgment to the sheriff, upon the judgment of affirmance rendered upon appeal to the County Court, did not discharge the lien of the defendant, or of the constable for his fees.
Appeal from a judgment in favor of the plaintiff and against the defendant, upon the report of a referee.
On the 11th day of December, 1871, the defendant, Ebenezer Keeler, recovered a judgment, before a justice of the peace, against the plaintiff, William Aliger, and one Clarissa Yan Yorhis for twenty-nine dollars. On the 12th day of December, 1871, an execution was issued upon said judgment against the property of the defendants Aliger and Yan Yorhis, and on the 26th day of the same month it was levied on the cattle for the conversion of which this action was brought.
The constable took possession of the property levied on and delivered the same to Ebenezer Keeler, the defendant in this action, as a receiptor thereof.
The constable advertised the property for sale, but the sale was stayed by an appeal to the County Court and by the giving of an undertaking.
The judgment of the justice was affirmed by the County Court on the 29th day of September, 1873; and on the 30th day of the same month an execution was issued, upon the judgment of the County Court, to the sheriff of Steuben county.
p. 126
At some time thereafter the amount of that execution was paid to the sheriff.
On the 6th day of January, 1874, the cattle in question still remained in the possession of the defendant Keeler, as receiptor, when Clarissa Yan Yorhis, one of the judgment debtors in the court below, transferred an interest in the same to William Aliger, the other judgment debtor.
On the seventh day of January a demand of the cattle was made, and the receiptor refused to give them up unless the constable’s fees and expenses are paid, and he was paid for their keeping.
On the tenth day of the same month this action was brought to recover the value of the cattle, on the ground that they had been converted by the receiptor.
In his answer the defendant claimed his right to hold the property, as receiptor, until the costs and expenses of the taking and keeping the cattle were paid, and claimed to recover the amount thereof in this action.
Butler c& 8earl for the appellant.
A. M. Spooner, for the respondent.

The constable levied upon the property in question under a valid execution issued upon a valid judgment.

It was his duty to hold and take eai’e of the property till the judgment and his fees were discharged. He could, as he did, commit the property to the defendant’s custody to hold as a receiptor, and the latter, under the constable, acquired a valid lien upon the property for his just and lawful charges as such receiptor. The payment of the judgment to the plaintiff or to the sheriffj upon the judgment rendered upon the appeal to the County Court, did not discharge the lien of the defendant, or of the constable for his fees.

Judgment should have been given upon this ground for the defendant, and it should now be reversed.

Present' — MulliN, P. J., Smith and Taloott, JJ.

Judgment reversed and new trial granted, costs to abide event.