
    (62 Misc. Rep. 65.)
    TOM S. WOTKYNS & CO. v. DEMPSEY-GABRIELS BRICK CO.
    (Saratoga County Court.
    January, 1909.)
    1. Justices of the Peace (§ 135)—Execution—Property Subject—Property-in Custody.
    A sheriff levied an execution and took the property of the debtor into, his possession. Thereafter an execution issued on a subsequent judgment against the same defendant and was delivered to the sheriff, who made-no actual levy thereunder. Held, that a constable to whom an execution was issued by a justice against the same defendant cannot levy on the same property and sell it subject to the sheriff’s levy,
    [Ed. Note.—For other cases, see Justices of the Peace, Cent. Dig. § 427 Dec. Dig. § 135.*]
    2. Execution (§ 326*)—Sale—Distribution of Pboceeds—Second Levy.
    Where a sheriff had levied an execution and taken the property into his possession, and thereafter an execution issued on a subsequent judgment was delivered to the same sheriff, it operated as constructive levy on the-property in his possession, and after a sale on the first execution the proceeds, after payment of the first judgment in full and the costs of the levy, should be applied as far as the money would permit to the second execution, and any surplus applied to the judgment against the same defendant rendered by a justice, the execution on which is in the hands of the constable.
    [Ed. Note.—For other cases, see Execution, Cent. Dig. § 966: Dec. Dig. §- 326.*]
    Action by Tom S. Wotkyns & Co. against the Dempsey-GabrielsBrick Company. Judgment for plaintiff. On sale under execution against defendant, sheriff moved, for an order as to the disposition of moneys in his hands.
    Order for disbursement entered.
    Samuel Foster, for Tom S. Wotkyns & Co.
    Walter H. Wertime, for Cohoes-Water ford Home Telephone Co.
    John Scanlon, for Doras Francisco and Hoffman Steenburgh.
    H. E. McKnight (William T. Moore, of counsel), for John Bradley, Jr., sheriff of Saratoga county.
    
      
      For other oases see same topic & § number in Dec. & Am. Digs. 1907 to Sate, & Rep’r Indexes,
    
   ROCKWOOD, J.

This is a motion by the sheriff of Saratoga county for an order directing the disposition of certain moneys in his hands, arising from the sale of certain personal property of the Dempsey-Gabriels Brick Company under an execution issued to the sheriff in the action above entitled.

The question presented by the papers relates to the priority of certain executions. It appears that Tom S. Wotkyns & Co. recovered a judgment against the brick company on the 16th day' of December, 1908, in an action in the City Court of the city of Troy. A transcript of the judgment was docketed in the Saratoga county clerk’s office on December 17, 1908, at 10 o’clock a. m., and an execution thereupon delivered to the sheriff of Saratoga county on December 17, 1908, at 10:15 o’clock a. m. The sheriff, by his deputy, thereupon levied upon the personal property of the defendant brick company. Thereafter the Cohoes-Waterford Home Telephone Company recovered a judgment in justice’s court against the brick company for $63.65, which judgment was docketed in the office of the clerk of Saratoga county on the 18th day of December, 1908, at 9:55 o’clock a. m., and thereupon became a judgment of the County Court. An execution upon this judgment was delivered to the sheriff of Saratoga county on December 18, 1908, at 10 o’clock a. m. No actual levy was ever made by virtue of this execution; but at the time it was delivered to the sheriff he had made his levy upon the property of the brick company by virtue of the Wotkyns execution and had the property in his physical possession at that time. Thereafter Doras Francisco recovered a judgment against the same defendant in justice’s court, on the 18th day of December, 1908, at 10 o’clock a. m. The justice of the peace thereupon issued an execution, at 10:15 o’clock a. m., which execution was placed in the hands of a constable, who thereupon levied upon the same goods, which were in the physical possession of the sheriff of Saratoga county by virtue of the execution issued in the Wotkyns action. The sheriff, by virtue of the. executions in his hands, sold the property levied upon in the Wotkyns action and realized the sum of $202. All of the parties concede that the Wotkyns judgment, being a prior lien, should be first paid; and the sheriff is directed to pay such amount to the attorney for Tom S. Wotkyns & Co., to wit, the sum of $110.84, with interest from December 16, 1908, together with the sheriff’s legal fees and poundage.

The question arises as to the disposition of the balance of the fund; that is, whether it should be paid to Doras Francisco by virtue of his execution issued by the justice of the peace, or to the Cohoes-Waterford Home Telephone Company by virtue of its execution issued to the sheriff. Francisco contends that section 1408 of Code Civ. Proc. is applicable and entitles him to a preference. That section reads as follows:

“But an execution, issued out of a court not of record, or a warrant of attachment, granted in an action pending in a court not of record, if actually levied, has preference over another execution, issued out of any court, of record or not of record, which has not been previously levied.”

At the time of the issuance of the Francisco execution, the CohoesWaterford Home Telephone Company execution had been issued and had been delivered to the sheriff, but no actual levy had been made. As the sheriff, however, had possession of the property of the brick company by virtue of the Wotkyns & Company execution, I hold that there was a constructive levy which gives the Cohoes-Wateríord Home Telephone Company’s execution a preference. This precise question was decided by Judge Bockes in the case of Seymour v. Newton, 17 Hun, 30, wherein it was held that, where a sheriff has made a valid levy under an execution and taken the property into his possession, a constable, to whom executions against the same defendant are subsequently issued by a justice of the peace, cannot make any levy on such property, nor can he sell the same subject to the levy made by the sheriff. In the opinion the court held:

“After an execution has been levied by a sheriff, the receipt of a second execution by that officer against the same defendant operates as a constructive levy upon the property previously levied upon by him”—citing Birdseye v. Ray, 4 Hill, 158, 160.

It is further held that in such a case the property is in the custody of the law, being in the physical possession of the sheriff, and that a constable would be without power or authority to take the property from the sheriff by virtue of a levy upon an execution issued by a justice of the peace.

The Seymour Case, supra, has been cited with approval and does not appear to have been distinguished. I hold, therefore, upon the authority of this and kindred decisions, that the property levied upon under the Wotkyns execution was in the physical custody of the sheriff; that the delivery of the telephone company execution operated as a constructive levy by virtue of that execution; that the constable was without power to levy upon the property while it was in the hands of the sheriff, or to take it from him; and that section 1408 of the Code of Civil Procedure is not applicable to the facts in this case, because a constructive levy upon property in custody of the law operates as an actual levy for all intents and purposes and entitles the telephone company to a legal preference.

The order, therefore, is that-the sheriff disburse the money as follows: First, that he pay the judgment of the Wotkyns Company in full; second, that he pay the execution of the Cohoes-Waterford Home Telephone Company as far as the money in his hands will allow; and that he apply the surplus, if any there shall be, to Doras Francisco —the sheriff, of course, to deduct his legal fees and poundage.

Application is made by counsel for the sheriff for an allowance for costs; but I find no section of the Code authorizing me to make such direction, and such application is therefore denied.

Ordered accordingly.  