Van Winkle v. Udall

1 Hill & Den. 559

• Court: New York Supreme Court
• Decided: July 15, 1841
• Status: Published

Opinion

By the Court, Cowen, J.

The sheriff had levied on all the property in question, under the fi. fa. in favor of Bosworth. Then came the plaintiff’s fi. fa., the mere receipt of which by the sheriff operated as a constructive levy.

(a) Bosworth’s fi. fa. being subsequently withdrawn, that of the plaintiff took complete effect, the levy under it becoming absolute. Clearly, the sale to Pine was subject to the levy under the plaintiff’s execution; first, the qualified levy, and secondly, the absolute one, when Bosworth’s fi. fa. was withdrawn. Either was sufficient to hold the goods as against Hendrickson, or Pine who claimed under him.(b) The sheriff should, therefore, have kept the goods and sold them under the plaintiff’s jfi fa, Not having done so, he is liable for their value. The learned judge erred in omitting so to charge; and there must be a new trial.

New trial granted.

Cresson v. Stout, (17 John. R. 116.) And see Collins v. Yewens, (10 Adol. & Ellis, 570.

.) See Butler v. Maynard, (11 Wendell, 548.) 2 R. S. 289, 290, § 17, 2d ed.