42 N.Y. 193 | NY | 1870
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Although the facts are quite numerous, I am convinced that there is really but one important question *198
involved in the decision of this case, which is, whether Ringel, by the commencement of his equity action against Victor Heubach, Alfred Heubach, Augustus Johnson, and their assignee, Henry Heubach, and the service of an injunction, without a judgment, or the appointment of a receiver, in said action, prior to the sale of the personal property by the sheriff, by virtue of the executions issued upon the two judgments which were recovered by Billhofer Arnold against Victor Heubach, Alfred Heubach and Augustus Johnson, one on the 21st October, 1860, for $3,687.84, the other on the 13th November, 1860, for $2,023.15, acquired such a lien upon said property as created a preference in favor of Ringel, superior to the title acquired by the levy and sale under the Billhofer Arnold executions. In this controversy, Davenport, the receiver, and Kelly, the sheriff, are, in effect, merely nominal parties, the real parties in interest being Ringel, represented by the receiver, and Billhofer Arnold, represented by the sheriff. Davenport, the receiver, was appointed in the action first commenced by Billhofer Arnold. By an order of the Supreme Court, made on the 30th day of November, 1860, modifying an order made on the 14th day of November, 1860, in said action, it was provided that the residue of the property in the hands of the receiver, after a sale by him, amounting to the gross sum of $8,500, should be exempt from the furtheroperation of the receivership in that action. Such sale was made by the receiver, and the said gross sum was realized. All of the parties had notice of such order and of the sale. A motion was made by Ringel for the appointment of a receiver in his action, but before the making of said motion, and consequently before the granting of an order for the appointment of a receiver, the sheriff proceeded and sold the residue of the personal property, under the two executions in favor of Billhofer Arnold; such sale being made on the 20th day of March, 1861. I am of opinion that the sale of the property by the sheriff was regular and valid, and that Billhofer Arnold were entitled to the proceeds of such sale, in preference to Ringel; that, until the appointment *199
of a receiver, no such lien upon the personal property was acquired as prevented such levy and sale by virtue of the executions. This was expressly decided in Storm v. Waddell (2 Sandf. Ch. Rep., 494, 516); and to the same effect is the decision in Van Alstyne v. Cook (
All concur for affirmance, except SUTHERLAND, J., who did not vote.
Judgment affirmed. *200