243 F. 368 | 2d Cir. | 1917
(after stating the facts as above). If the judgment creditor’s right or lien depends ,on or arose from the issuance of the alias execution, or the levy made thereunder, then, since both issuance and levy were within the four months period, it may be assumed (though not decided) that the petitioning creditors should prevail, because it was an act of bankruptcy not to discharge such lien within five days. If, however, Teitelbaum acquired a right to or lien upon the jewelry in question by the issuance of his original execution, or by filing his successful petition, or by the conjoint effect of both proceedings, and did not lose the same by the return of such execution, then his lien attached more than four months before the bankruptcy of the Superior Jewelry Company, and he is unaffected thereby.
Since the jewelry in question was personal property physically within the jurisdiction of the sheriff of New York county, Teitelbaum (under ordinary circumstances) had a lien thereupon or (in the language of the statute) the property was “bound by the execution” from the time he delivered the process to the sheriff, i. e., February 15, 1916. Code Civ. Proc. § 1405. The jewelry was in the custody of the District Court sitting in bankruptcy. ■ Any exercise of dominion thereover by the sheriff of New York county would have been unlawful. Covell v. Heyman, 111 U. S. at 182, 4 Sup. Ct. 355, 28 L. Ed. 390; Wiswall v. Sampson, 14 How. 52, 14 L. Ed. 322. This required Teitelbaum to file his petition in and to the court whose possession of the chattels prevented a levy under his execution. The procedure was in accord with Krippendorf v. Hyde, 110 U. S. 276, 4 Sup. Ct. 27, 28 L. Ed. 145.
That petition was of the nature of a creditors’ bill, and specifically sought the aid of the court to remove the obstacle to the execution created by the possession of the trustee in bankruptcy. That the court had power to entertain and grant the petition is not denied, and it is certainly apparent. Whether Teitelbaum could have framed his petition in any other way, so as to appeal directly to the bankruptcy court as one conducting proceedings in equity (First National Bank v. Abbott, 165 Fed. 852, 91 C. C. A. 538, 21 Am. Bankr. Rep. 438), is not before us for decision. The petition as preferred was substantially a bill in aid of the execution, and speaks from the time it was filed (Freedman’s, etc., Co. v. Earle, 110 U. S. 716, 4 Sup. Ct. 226, 28 L. Ed. 301).
Therefore the Superior Jewelry Company did not commit the act of bankruptcy alleged in this petition for adjudication, and the order appealed from was right, and is affirmed, with costs.
