
    SUPREME COURT.
    George Abeel et al. agt. John J. Anderson.
    
      Execution — Lien of — How created — Oode of Oirnl Procedv/re, sections 2486— ' 3447
    The plaintiff issued execution on judgment against defendant, and the sheriff demanded payment of the execution. Then defendant made a general assignment, and thereafter the execution was returned unsatisfied, and a receiver was appointed on supplementary proceedings:
    
      Meld, that the judgment and execution and the demand of payment under the execution in its lifetime did not create a lien which can be enforced, under sections 2436-2447 of the Oode.
    
      First Department, General Term,
    
    
      April, 1886.
    
      Before Davis, P. J., Brady and Daniels, JJ.
    
    Appeal from order of the special term denying motion to compel James S. Allen, as assignee of John J. Anderson, to ■ pay the plaintiffs’ judgment recovered against Anderson.
    
      F. S. Hatch, for appellant.
    
      D. Nicoll, for respondent
   Davis, P. J.

The plaintiffs in this action recovered their-judgment against the defendant. John J. Anderson, and issued execution thereon on the 1st of October, 1884. On the 8th of October, 1884, the defendant made a general assignment for •the benefit of creditors to James L. Allen, the respondent on. this appeal. The plaintiffs claim that their judgment and execution was a lien upon the property of the defendant prior to such general assignment. No levy had been made of the execution before the assignment, but a demand for payment of the execution was made by the sheriff prior to the making of the assignment, and thereafter the execution was returned un~ satisfied. Proceedings supplementary to execution were had, and one Henry A. "Wheeler was appointed receiver of the property of the defendant. The receiver duly qualified.

The question presented is whether the demand made by the sheriff of payment of the execution operated to give him such a lien upon the property of the defendant as entitles the plaintiffs to the remedy they now seek. The court below held that no lien was acquired.

Section 1405 of the Code of Civil Procedure provides that the goods and chattels of the judgment debtor situated within the jurisdiction of the officer, are bound by the execution from the time of its delivery to the officer to be executed.

This relates, however, only to such property as can be levied upon and sold by the sheriff; and there must be an actual levy during the life of the execution, otherwise the lien of the execution is lost (Hathaway agt. Howell, 54 N. Y., 97; Walker agt. Henry, 85 id., 134). In this case there was no lien upon any property. The execution was returned unsatisfied and a receiver in supplementary proceedings was thereafter appointed, who duly qualified. If Allen, the assignee of the judgment debtor, did not take title of the assigned property, then the receiver appointed in the supplementary proceedings was vested with such title. But the validity of the assignment in this • case is not attacked. It is simply asserted that the judgment .and execution and the demand of payment made upon the defendant under the execution in its lifetime created a lien which can be enforced under sections 2436-3447 ®f the Code.

We are of opinion, as was the court at special term, that no such lien was created by the demand, and that the title of the assigned property vested in the assignee, Allen, and so far as any facts are developed in this case, can only be reached and affected by the plaintiffs as judgment creditors, by an action begun either by themselves or the receiver to set aside the assignment upon grounds affecting its validity.

But whatever may be the remedy that exists, it is quite clear -■to us that under the provisions of the Code the court had no power to order tbe application of the property or its proceeds in the hands of tbe assignee upon the judgment of the plaintiffs for' its payment.

The order' should be affirmed, with ten dollars costs and disbursements.

Daniels and Brady, JJ., concurred.  