Jones v. McCarl

7 Abb. Pr. 418

Opinion

By the Court.

*—Daly, J.

—The ground upon which the levy was set aside was, that it was made in bad faith, at the instance of the plaintiff. An execution was handed to the constable on the 4th; on the 5th the defendant perfected an appeal; and a copy of the undertaking, the service of which upon the constable would have stayed all further proceedings upon the execution, was served upon, the plaintiff, who immediately, that is, upon the afternoon of the 5th, the service upon him having been made at eleven o’clock in the morning, went to the constable and directed him to levy upon a horse in the possession of the defendant. This was a course of proceeding which the court should not sanction. The plaintiff had security for his judgment approved by the court, and with the knowledge of that fact he sought to perfect a levy upon the defendant’s property before a copy of the undertaking was' served upon the constable. By so doing he subjected the defendant to the expense of the levy, which involved the keeping of the horse in the hands of the constable until the appeal was decided (Smith a. Allen, 2 E. D. Smith's C. P. P., 259), while, at the same time, the plaintiff had his judgment secured upon appeal. The court should discountenance such a'course as this, and I think the judge below did right in setting aside the levy. The order appealed from should be affirmed.

Present, Daly, F. J., and Beady and Hilton, JJ.