Minturn v. Stryker

1 Edm. Sel. Cas. 356

• Court: New York Circuit Court
• Decided: February 16, 1846
• Status: Published

Opinion

The Circuit Judge:

I think the plaintiff must have judgment. That which the deputy called a levy on the 6th or 7th of August, was not such. It does not appear that he saw the property, or had it under his control, nor did he make known that he had levied, but on the other hand, by his declaration to the plaintiff, clearly gave him to understand that he did not then mean to exercise any control over it. All he seems to have done was to call on the president of the village and inform him he had an execution. This was not a levy. He did not take actual possession; the goods were not brought within his view, and subject to his control; no inventory was taken, and his acts were not such as, under any circumstances, could have made him a trespasser. And the plaintiff could not have understood it was a levy, for he avowed the intention to replevy, which intention was carried out the moment the deputy did those acts which are necessary to constitute a levy. (Beekman v. Lansing, 3 Wend. 550; Westervelt v. Pinckney, 14 id. 123; Van Wyck v. Pine, 2 Hill, 666.) A levy, to be valid, must be a clear, palpable, unequivocal act, not secret or concealed, upon property within his view and subject to Ms control. The first act of that Mnd, in tMs case, was after plaintiff’s title had accrued.

There is nothing in the other point raised for the defendant. Meserole had not only a right to immediate possession, by his contract with the village, but he had exercised the right and put an end to the contract by his sale to the plaintiff, and the plaintiff claimed and had the actual possession at the time the levy was really made.

Judgment for plaintiff.