
    The People ex relatione Halsted and another vs. The Superior Court of the City of New-York.
    
    ALBANY,
    May, 1839.
    Where personal property levied upon by virtue of an execution, and delivered to a plaintiff in replevin, is again levied upon by another execution, an order to stay proceedings upon the second execution until the determination ■ of the replevin suit will be granted upon the application of the plaintiff in replevin.
    Motion for mandamus. The relators issued an execution on a judgment in their favor, against Joseph L. Joseph and others, which was levied upon household furniture in the possession of the defendants in the execution. A person of the name of Levy, applied to the superior court of the city of New-York, for an order staying proceedings upon the execution, until the determination of a suit in replevin commenced by him in reference to the same furniture, which had been taken by virtue of an execution, against the same defendants, on a judgment in favor of one Dixon, previous to the issuing of the relators’ execution. The furniture which is not of a value equal to the amount of Dixon’s execution, was delivered by virtue of the writ of replevin to Levy, who left it in the possession of the defendants in the execution. The superior court granted the application of Levy, and the relators now ask for a mandamus, requiring that court to vacate the rule staying proceedings.
    
      S. Stevens, for the relators.
    
      M. T. Reynolds, contra.
    
      
       Decided April, 1839.
    
   By the Court,

Cowen, J.

The mandamus cannot be granted. This court cannot control the discretion exercised by the court below. Besides it is not perceived why it was not fitly exercised. The stay is only temporary, until the determination of the replevin suit. It was fully competent to the court to make the order.

Mandamus denied.  