Seymour v. Newton

Bockes, J.: The sheriff had made a valid and effectual levy upon all the property of Watrous, under execution against the latter, and had [32] tbe property in Ms actual possession under such levy. The defendant Newton, a constable with two executions in Ms hands, issued by a justice of the peace against the property of Watrous, went into the building where the property was kept by the sheriff, and formally entered a levy thereon by indorsement on the execution. Afterwards the property was sold by the sheriff under the execution in his hands, and Newton the constable being unable, either to obtain the property or any of the avails from the sheriff, returned Ms executions unsatisfied. This action is brought by the plaintiff in those executions against Newton, the constable and Ms bondsman, to recover the amount of those executions. The learned judge held that no valid levy could be made by the constable upon the property while in the hands of the sheriff under levy by the latter. This ruling is sustained by authority. (Hartwell v. Bissell, 17 John., 128; Dubois v. Harcourt, 20 Wend., 41; Gilbert v. Moody, 17 id., 358; Acker v. White, 25 id., 614; Hagan v. Lucas, 10 Peters [U. S. R.], 400.) In the last case cited, Justice McLean, speaking for the court, remarks as follows: “ In Holt, 643, and 1 Show., 174, it was resolved by Holt, Chief Justice, that goods bemg once seized, and in custody of the law, they could not be seized again by the same or any other sheriff; nor can the sheriff take goods which have been destraiued, pawned, or gaged for debt (4 Bac. Ab., 389), nor goods before seized on execution, unless the first execution was fraudulent, or the goods were not legally seized under it.” In this case, as in the case at bar, the authority for the seizure of the property came from different jurisdictions. After an execution has been levied by a sheriff, the receipt of a second execution by that officer against the same defendant operates as a constructive levy upon the property previously levied on by him. (Birdseye v. Ray, 4 Hill, 158, 160.) In such case the property is in the actual custody of the officer, hence the lien by levy attaches without further action. To constitute a valid levy, the officer must bring the property under his dominion and control. This he cannot do while it is in the hands of another officer under levy, for he could not lawfully obtain any domimon over it while thus in the custody of the law. Property m pledge could not at common law be levied on under execution against the pledgor, and it requires a statute to [33] give such right. (2 R. S., 366, § 20; Bakewell v. Ellsworth, 6 Hill, 484; Hull v. Carnley, 11 N. Y., 507, 508; Harris v. Murray, 28 id., 576; Stief v. Hart, 1 id., 20.) In the case at bar the constable, by levy, could not obtain any dominion or control over the property in the sheriff’s hands under valid levy by him. It is suggested that the constable might have sold the property subject to the levy by the sheriff; not so, however, unless he might control its possession. Even the advertising it for sale would have been equivalent to divesting the sheriff of his possession (Hull v. Carnley, 11 N. Y., 508); and this he could not lawfully do. He could not take the property from the sheriff; nor as against that officer could he have any dominion over it, and, of course, could not sell it under his execution. It follows, therefore, that the defendant Newton, the constable, had no valid levy upon the property of 'Watrous in the sheriff’s hands, which he could enforce, and it is not pretended that he omitted to levy upon any from which satisfaction of the executions in his hands, or of any part of them, could have been made. But it further appears that the sheriff exhausted the property in making satisfaction of the executions which admittedly had priority over them held by the constable. Without elaborating this point, it is sufficient to say that it is not made to appear that the sheriff realized from the property more than was required to pay the prior executions with the necessary and proper disbursements in taking needful care of it, with the fees and poundage to which he was entitled. The judgment must be affirmed, with costs.