
    CALVIN L. HATHAWAY, Appellant, v. EDWIN W. HOWELL, Respondent.
    
      Execution—issued before entry of judgment.
    
    Appeal from a judgment in favor of defendant, entered on the report of a referee.
    This was an action to recover the possession of certain hotel furniture, of the value of $10,000.
    The case was once before tried, and the defendant had judgment', which was affirmed at the General Term, but reversed by the Commission of Appeals.
    
    The defendant, as sheriff of Chemung county, justified taking and holding the property under and by virtue of an execution against one Slater, dated May 26,1866, reciting a judgment of that date as the basis for its issue. It was shown that papers were prepared for obtaining a judgment, by confession, on Saturday evening, May twenty-sixth, and left in the clerk’s office to be entered up after hours, but was not and could not be perfected until eight o’clock, Monday the twenty-eighth. This execution was issued and delivered to the sheriff on May twenty-sixth, with directions to levy, and a levy was made on that day. On the former appeal, the Commission held  that an execution did not vest any right or title to the execution debtor’s property in the sheriff until actual levy made; and that a levy must be made during the life of the execution ; that the execution was void; and that no title was acquired by the sheriff by his levy on the twenty-sixth. That the judgment against Slater did not become perfected until eight a. m., on the twenty-eighth, arid no levy was shown to have been made after that date within the life of the execution.
    On the second trial, the défendant undertook to show that a new levy was made with this execution after eight o’clock on Monday, the twenty-eighth.
    The question passed, on by the General Term was the sufficiency of the evitieñóe on' the sécond trial "to ‘establish a levy on May twenty-eighth. The court was of opinion that that fact was not shown by the evidence, and reversed the judgment, granting a new trial, costs to abide the event. ,
    
      Milo Goodrich, for the appellant.
    
      S. B. Tomlinson, for the respondent.
    
      
      54 N. Y. 97.
    
    
      
       54 N. Y., 102.
    
   Opinion by

James, J.

Present—Learned, P. J., Boardman and James, JJ.

Judgment reversed, and new trial granted, costs to abide event.  