Ransom v. Halcott

18 Barb. 56 | N.Y. Sup. Ct. | 1853

By the Court, Parker, J.

Before the defendant, as sheriff, received the attachment of the plaintiffs, he had received three attachments in favor of other creditors, under which he had levied on all the personal property of Vandenbergh. Though he knew that Vandenbergh had also real property, he did not levy upon it, but levied the plaintiffs’ attachment only on the same personal property previously levied on. When the fifth attachment reached him, he levied for the first time on the real property, and the avails of the debtor’s real property were accordingly applied on that demand. A subsequent creditor was thus, by the act of the defendant, preferred to the plaintiffs, who lose their demand in consequence of the defendant’s neglect.

The question presented, on these facts, is, whether the defendant is responsible for not having levied on enough property to satisfy the plaintiffs’ demand, when the debtor had sufficient property, and the defendant knew it. By the revised statutes the warrant of attachment, in terms, commanded the sheriff to attach all the property, real and personal, of the debtor, in his county. (2 R. S. 4, § 6. Id. 459, § 16.) But these proceedings were instituted under the-code, (§ 231,) which requires the sheriff to attach and safely keep all the property of the defendant within his county, or so much thereof as may be sufficient to satisfy the plaintiff’s demand, together with costs and expenses.

Under this attachment, the sheriff had a right to levy on all the property of the debtor, and he was bound, I think, at his peril, if he did not levy on all, to levy on enough to satisfy the demand. The form of the attachment is substantially like that of an execution against property, and I think it is to he governed by the same rules, as to the extent of property levied on. There is the same reason for the rule, in both cases. Under an execution, it will not be contended that a sheriff will be excused if he fails to levy on sufficient property to satisfy it. (Allen on Sheriffs, 142. 18 Serg. & R. 450.) The adequacy of the extent of the levy is to be ascertained by the result of the sale. (1 Swift’s Dig. 797. 8 Alaba. Rep. N. S. 625. 9 id. 83. 5 Pike, 680. 1 Day, 128.) In Connecticut, where mesne process of attachment has long been in use, it is well settled that if the property taken be insufficient, and the defendant had enough property to pay the debt, the officer will be held personally liable for the deficiency. (Swift’s Dig. 590.)

It can be no excuse to the sheriff that the property was appraised at a sum sufficient to pay all the attachments. The appraisal is not made to enable the sheriff to know on how much to levy, but it is made after the levy, with a view to the sheriff’s accountability for the property, and for the protection of an absent defendant. An appraisal was required under the revised statutes, when all the property was levied on. The appraisal under the code is a continuation of the same practice. It is not for the benefit of the plaintiff that an appraisal is made, and it is no security to him. It is ex parte and the act of those selected by the sheriff, over whom the plaintiff has no influence. (Lawson v. The State, 5 English’s Ala. Rep. 28.)

It is the right of the creditors to have the respective attachments take priority according to the date of their delivery to the sheriff. But by the act of the defendant the attachment of the plaintiffs was postponed to that of Mallory & Ingalls, which was subsequently issued. When the defendant attached the land under the attachment of Mallory & Ingalls, it seems to me it was clearly his duty to attach it also on all the prior attachments, so as to secure them their rightful priority, if the personal estate should prove to be insufficient to satisfy them. (Arbeny v. Noland,, 2 J. J. Marsh. 421.)

[Albany General Term, December 5, 1853.

Whether the act was intentional, or the result of negligence, I think the defendant is hound to compensate the plaintiffs for the injury they have sustained, and that the plaintiffs are entitled to judgment.

Judgment for the plaintiffs.

Parker, Wright and Harris, Justices.]