
    ELIAS against FARLY.
    
      Court of Appeals ;
    
    
      March Term, 1867.
    Levy by Sheriff. — Preferred Liabilities.
    The sheriff, with execution, in .his hands, went to the person having charge of the property, or who, with others, was in its apparent possession, and, in view and control of the goods, informed him that he levied on the goods, and indorsed a memorandum of the levy upon the executions.— Held, that this was sufficient as a levy, although the person in charge was the assignor, who disclaimed any interest in the goods, and no notice was given by the sheriff to the assignee.
    If a debtor, making an assignment for benefit of creditors, prefers his landlord for rent of his dwelling, the assignment is void, if this be done with intent to secure the occupation of the dwelling-house for the benefit of himself and family, subsequent to the assignment, without paying rent or being liable therefor.
    Appeal from a judgment.
    This action was "brought "by Israel Elias and Aaron Elias against Benjamin Early, sheriff of the county of Niagara. The defendant justified the taking "by virtue of several judgments and executions against Samuel M. Weiner, claiming the goods seized to "be the property of Weiner.
    Upon the trial, the plaintiff read in evidence a general assignment for benefit of creditors from Weiner to one Baer, dated November 27, 1857, assigning the goods in question for the benefit of creditors. Among certain preferred creditors mentioned, was George Jndson, for rent, $60. The defendant produced George Judson as a witness, who was asked whether Weiner was owing him last fall. Plaintiff’s objection to the question was overruled, and the witness answered: “ He owed me for rent; he hired a house of me May 5, 1857, for one year from that date, for $2 per week, and was to pay me once in two weeks, or four weeks, as I wanted. I traded, and he paid me money, and I settled with him about November 1, 1857, and had received only $40.78. Werner occupied the premises with his family till about the last of April, 1858. His family and his goods were there till about then.”
    The court charged the jury, among other things, that if Weiner preferred Judson in the assignment, for the use and occupation of a dwelling-house before and subsequently to making the assignment, and, even though a bona fide liability, with intent that it should' accrue to Weiner’s future benefit by securing to himself and family the future -use of the dwelling, without paying rent or being liable therefor, then the assignment was void.
    To this charge the plaintiffs excepted, and requested the court to charge that there was no evidence tending to show that Weiner preferred Judson with such intent, which request the court refused.
    The other facts, material to the points decided, are sufficiently stated in the opinion of the court.
    
      P. L. Ely, for the plaintiffs, appellants;
    —reviewed the exceptions, and insisted that the unexpired term of the lease passed under the assignment, and the acts of the assignee under it, could not affect the validity of the assignment. It was the duty of the assignee to take possession of the property, and collect the rent. The fact that he failed to do so was not to be charged as evidence of fraud in the assignor (citing and commenting on Mackee v. Cairns, 5 Cow., 547; Leitch v. Hollister, 4 N. Y., 211; Barney v. Griffin, 2 N. Y., 365).
    II. There was no levy within the established rules (Booth v. Wells, 29 N. Y., 671). The sheriff had notice of the assignment, and that the assignee was next door. The officer should have taken possession of the goods by manual acts; or if the levy was intended, it must be acquiesced in by those who are present and interested (Camp v. Chamberlain, 5 Den., 198).
    
      W. A. Butler, for the defendants, respondents.
    —I. As ' to the preference of the claim for rent,—cited and commented on Murray v. Smith, 1 Duer, 412 ; Haggart v. Morgan, 1 Seld., 422 ; McAllister v. Reab, 4 Wend., 483 ; S. C., 8 Id., 109 ; 2 Rev. Stat, 137, §§ 1, 3, 5 ; Mackie v. Cairns, 5 Cow., 547; vide pp. 567, 580 ; Leitch v. Hollister, 2 N. Y. [2 Comst.], 211 ; Barney v. Griffin, Id., 365 ; Goodrich v. Downs, 6 Hill, 438.
    II. As to the sufficiency of the levy,—Connah v. Hale, 23 Wend., 466 ; Wintringham v. Lafoy, 7 Cow., 735 ; Reynolds v. Shuler, 5 Cow., 326 ; Phillips v. Hall, 8 Wend., 610, 613 ; Allen v. Crary, 10 Id., 349, and cases cited ; Wall v. Osborn, 12 Id., 40 ; Fonda v. Van Horne, 15 Id., 633 ; Butler v. Maynard, 11 Wend., 548; Beekman v. Lansing, 3 Wend., 450.
   Hunt, J.

—Numerous exceptions were taken during the trial. Some of them are conceded by the appellants to be without merit.

I have examined them all with care, but do not think it necessary to discuss any of them, other than the exceptions taken to the charge of the judge. Weiner was a merchant in Lickport, and the owner of the goods in question. In November, 1857, he made an assignment t© one Baer. The assignment was alleged to be fraudulent. Testimony was given upon this question, and the jury by their verdict decided that it was fraudulent. On the 23rd of January, 1858, the deputy sheriff made the levy under which the goods were afterwards removed and sold. It is in relation to the validity of this levy that the question is made. On the 26th day of January, Baer made a sale to the plaintiffs of all the goods remaining unsold, which sale, it is alleged, was also fraudulent. The deputy sheriff testified that, having these executions in his hands, he presented the same to Weiner at his store for payment; that he levied on the goods at that time; that he told Weiner of the levy at the time in the store, and that eertaid clerks named were also in the store. On being cross-examined, he further stated: “I made the levy on the 23rd day of January; I asked Weiner to turn me out property on the executions; he said he had no property ; I told him I was authorized to levy on that stock of goods ; I told Weiner I had made a levy on the stock of goods.” On the same day he indorsed upon the execution, “Levied, January 23rd, on all the goods in the store lately occupied by S. M. Weiner.” Baer, the assignee, was not present at this time.

In substance, the sheriff, with the executions in his possession, went to the person having charge of the property, or who, with others, was in its apparent possession, and in view and control of the goods, informed such person that he levied on the goods, and indorsed a memorandum of such levy upon the executions. No notice of the levy was given to Baer, the assignee. It was sufficient to give it to the person in charge. The jury have found that, as to creditors, the title was in Weiner, and not in Baer. No notice to Baer could have been necessary.

The plaintiffs’ counsel requested the court to charge the jury that there was no evidence of a sufficient levy upon the goods to entitle the defendant to hold the goods. The court declined so to charge, and the plaintiffs excepted. The court charged the jury that it was not necessary for an officer to take manual possession of the goods, or to assume the entire control over property, to constitute a valid levy; that if the sheriff went into the store where the goods in question were, having in possession the executions, for the purpose of levying on the goods, and found Weiner in the store, apparently in possession, exhibited the executions to Weiner, informed him that he levied upon the goods, and he then levied and made a minute upon his executions, this constituted a sufficient levy. To this the plaintiffs excepted. I am of the opinion that the evidence showed a sufficient levy, and that there was no just ground of exception to the charge (Camp v. Chamberlain, 5 Den., 198 ; Bond v. Willett, 31 N. Y., 102 ; Roth v. Wells, 29 N. Y, 471). In the latter case, the rule is thus laid down by Mullin, J. : “To constitute a valid levy, the officer must enter on the premises where the goods are, and take possession of them, if that be practicable ; if not, then he must openly and unequivocally assert his title to them, by virtue of his executions. It is not essential to the validity of the levy that he take actual possession of the goods, or that he remove them from the custody of the debtor. The test of a valid levy is whether enough has been done to subject the officer to an action of trespass, but for the protection of the execution.” In that case the defendant went to the plaintiffs’ store, saw the goods, asserted his right to them by virtue of his levy, in the hearing of one of the plaintiffs, and subsequently the fact that a levy had beep made was indorsed on the executions. (See, also, the explanation of the rule as given by Selden, J., at p. 488). The case of Roth v. Wells was elaborately argued, and the reported opinions show that all the authorities on the subject were before the court, and were carefully considered. It is a clear authority in favor of the defendant, and it is not necessary to go further in the citation of cases.

It appeared from the assignment of Weiner that a preference was given therein to one George Judson, to the amount of sixty dollars, for rent. On this branch of the case the court charged the jury that if Weiner preferred Judson for this sum for the occupation of the dwelling-house used by him, before and subsequent to the assignment, even though a bona fide liability, with intent that the same should accrue to Weiner’s future benefit, by securing to himself and family the future use of said dwelling-house, without paying rent or being liable therefor, the assignment was void. To this charge the plaintiff excepted. The law of this proposition is clearly sound (2 Comst., 365 ; 4 Id., 211; 5 Id., 547). The evidence from which the jury were authorized to draw the inference of the proposed intent, although not strong, was sufficient, I think, to raise the question.

These questions are the only ones requiring particular notice.

The judgment should be affirmed.

Judgment affirmed.  