166 N.E. 175 | NY | 1929
On the 10th day of June, 1927, the plaintiff sold and delivered an automobile to Jesse B. Earle. Contemporaneously, Earle executed and delivered to the plaintiff a conditional sale contract. The instrument engaged Earle to pay to the plaintiff an agreed purchase price; it provided that title to the automobile should remain in the plaintiff until payment had been made. On the 22d of July, 1927, Samuel T. Randall recovered a judgment against Earle, which was docketed in the county of Orange, within which Earle resided. An execution against the property of Earle was issued on the 23d day of July, 1927, to Henry Hull, the defendant herein, as sheriff of the county. On the 11th day of August, 1927, at 11:45 A.M., the plaintiff filed, in the office of the clerk of the city wherein Earle resided, the written contract evidencing the sale. Later, shortly after the noon hour of the same day, the defendant Hull, as sheriff of the county, and the defendant Pugsley, as under sheriff, levied upon the automobile and took the same into their possession. This action of replevin was thereupon brought to recover possession of the automobile. At Trial Term the complaint was dismissed, and, at the Appellate Division the judgment of dismissal was affirmed.
Under a conditional sale contract, at common law, no title passed to the buyer until the contract price had been paid. Consequently, neither an execution issued against the property of the buyer, nor a levy thereunder, gave rise to a lien upon the chattel sold. (Herring v. Hoppock,
The defendants mistakenly urge that, under the provisions of section 679 of the Civil Practice Act, a lien arose simultaneously with the issuance of the execution, irrespective of a levy. That section provides: "The goods and chattels of a judgment debtor, not exempt, by express provision of law, from levy and sale by virtue of an execution, and his other personal property which is expressly declared by law to be subject to levy by virtue of an execution, are bound by the execution, when situated within the jurisdiction of the officer to whom an execution against property is delivered, from the time of the delivery thereof to the proper officer to be executed, but not before." The Code of Civil Procedure, enacted in the year 1876, contained an identical provision. (L. 1876, ch. 448, § 1405.) The enactment was derived from the Revised Acts of 1801, wherein it was provided "that no writ of execution shall bind the property of the *488
goods of any person against whom such writ shall be issued, but from the time that such writ shall be delivered to the sheriff * * *." (L. 1801, ch. 105, § 7.) This latter provision was substantially a transcription of the English statute of 29 Car. II, ch. 3, § 16. (Hotchkiss v. M'Vickar, 12 Johns. 403.) Thus, from the earliest period in our history, it was the law of the State that a lien arises, not when a levy is made but at the moment when an execution is delivered to an officer. (Hendricks
v. Robinson, 2 Johns. Ch. 281, 296; Hotchkiss v. M'Vickar,supra; Lambert v. Paulding, 18 Johns. 311; Stewart v.Beale, 7 Hun, 405; affd.,
Equally mistaken are the defendants in their reliance upon the cases of Karst v. Gane (
The judgment of the Appellate Division and that of the Trial Term should be reversed and a new trial granted, with costs to abide the event.
CARDOZO, Ch. J., POUND, CRANE, LEHMAN, O'BRIEN and HUBBS, JJ., concur.
Judgments reversed, etc.