36 Misc. 539 | N.Y. App. Term. | 1901
On August 21, 1900, Ackerly and Balch executed and delivered to the plaintiff, a chattel mortgage, payable on demand, covering a quantity of personal property contained in the Clarendon Hotel, at Coney Island, where the mortgagors were carrying on their business. The mortgage was duly filed in Hew York county, August 22, 1900, at nine a. m., and in Kings county, on the same date at nine forty-five a. m.
On August 17, 1900, one Leffer recovered a judgment against the mortgagors in the Municipal Court of the city of New York, for the seventh district, borough of Manhattan, for $154.29. Execution on this judgment issued out of said Municipal Court was delivered to the defendant, a marshal appointed for the borough of Manhattan, who thereafter and on August 27, 1900 (five days after the filing of the plaintiff’s mortgage) levied upon the mortgaged property at Coney Island, in the county of Kings, took possession of the property, appointed one R. taxkeeper thereof, and took a receipt from one Hellie Condon, that she would hold the property subject to the defendant’s orders. The plaintiff then brought the present action to recover possession of the property and delivered a requisition in replevin to one Louis Levy, also a marshal appointed for the borough of Manhattan, to execute the writ. The defendant never turned the property over to Levy and the latter never obtained possession of it. The defendant gave Mr. Levy the receipt Miss Condon had previously signed and given to the defendant, but this in no manner aided Levy in getting the property, and he never in fact gained possession of.it.
Indeed, according to Tausend v. Handlear, 33 Misc. Rep. 587; S. C., 68 N. Y. Supp. 77, neither marshal had power to perform any official function in Kangs county, so. that all the defendant did there in the way of taking and retaining possession of the property was tortiously done and conferred no rights .whatever either upon him or the judgment creditor he assumed to represent.
This view makes it unnecessary for us to consider the effect of section 1403 of the Code of Civil Procedure as to when the property of the judgment debtor becomes bound by an execution delivered to an officer, for, if the marshal has no power to act in Kings county, property not within his jurisdiction was clearly not bound by it.
The cause was finally submitted to the justice without any objection whatever from the defendant as to the sufficiency of the plaintiff’s proofs, and the justice thereafter, filed the following decision: “ Judgment that defendant is in possession of the property described in the complaint, and that he is entitled to such possession until the amount of his special property therein amounting to the sum of $154.27 be satisfied, with $10 costs against plaintiff.”
This judgment was wholly unauthorized, as the defendant never acquired any lien, right of possession or special property in the subject-matter of the action, and it must be reversed and a new trial ordered, on the appeal taken by the plaintiff, with costs to the appellant to abide the event.
The appeal taken by the defendant must, under the circumstances, be dismissed, with ten dollars costs.
MacLean and Scott, JJ., concur.
On plaintiff’s appeal, judgment reversed and new trial ordered, with costs to appellant to abide event; defendant’s appeal dismissed, with ten dollars costs.
