Schmid v. Berkheimer

222 A.D. 694

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1927
• Status: Published

Opinion

Order denying defendant’s motion to vacate levy reversed upon the law and the facts, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. The attachment and the levy sought to be made under it were ineffective for the reasons, first, that the note was not within the jurisdiction of this court (Von Hesse v. Mackaye, 55 Hun, 365; affd., 121 N. Y. 694); second, because the sheriff failed to take the note into actual custody, as required by statute (Civ. Prac. Act, § 917, subd. 2; Dos Passos v. Morton, 218 App. Div. 154); and, third, because the record discloses that, prior to the levy, defendant transferred the note to a bona fide holder to whom the makers have made payment. (Anthony v. Wood, 96 N. Y. 180.) Young, Rich, Kapper, Lazansky and Hagarty, JJ., concur.