HOOLEY v. GIEVE

HOOLEY v. GIEVE. New York Common Pleas; General Term, 1877. Receiver. —Sheriff. Where the sheriff claimed property under an attachment and execution levied against G., and the receiver of the estate of the former partner of G. demanded it as part of the estate which had been used by the surviving partner in the firm business, it was stipulated, by the parties, that the goods should be sold by the receiver, and sufficient of the proceeds to satisfy the -execution and sheriff’s fees should be held by the receiver subject to the lien of the levy, if such were shown to exist. Held, 1. That, under the circumstances, the levy of the execution gave the sheriff a valid lien, which he could have enforced by sale. 3. That the proceeds in the receiver’s hands represented the goods so levied on. 3. That the court might, on motion, order the receiver to pay the judgment. The defendant Gieve was a member of the firm of Abraham Hooley & Co., organized in the year 1859, of which William Mackenzie subsequently became a partner. Hooley died July 28, 1873, and the surviving partners continued the business until January 1, 1874, when a new firm of Abraham Gieve & Co. was formed, composed of the aforenamed surviving partners and Samuel G. Cutts. The firm last named was dissolved on January 1, 1877, and Gieve continued as the representative of the firm in liquidation. Mackenzie and Cutts remained with Gieve after this upon a stipulated compensation, in anticipation of profits between January 4 and February 3, 1877. Mackenzie applied to one James E. Vail, and stated that A. Gieve & Co. dissolved on January 1; and that Gieve would want a lew goods to sort up his stock. Vail furnished the goods required, charging them to Abraham Gieve & Co., as he had previous dealings with that firm. No new account was opened for the goods thus purchased; but Yail was advised of the dissolution, and that the pur-. chase was for Gieve alone. These goods were put in the general stock by Gieve, and the proceeds went into the general assets. Yail sued Gieve in the marine court for the goods sold, and attached the stock of goods and office fixtures at No. 339 Breadway, the place of business of the old firm. Judgment was rendered in Yail’s favor for $692.12, execution issued and levy made on the property ino question, March 10, 1877. On March 14, 1377, Eugene T. Lynch was appointed receiver, pendente lite, of the trust estate of Abraham Hooley, deceased, which had been used by the firm of Abraham Gieve & Co., in its copartnership business. The sheriff claimed the property levied upon by virtue of his execution, and the receiver demanded it as part of said trust estate. It was finally stipulated that the goods in dispute should be sold by the receiver, and so much of the proceeds as would be sufficient to satisfy the sheriff’s execution and his fees should be held by the receiver, subject to the lien of the levy by the sheriff, if such were shown to exist. The property was sold by the receiver, and netted $1,200. Yail applied to the court in this action for an order directing the payment of his judgment out of the proceeds of the sale, and from the order adjudging such payment this appeal is taken. Stephen H. Olin, for the appellant. P. P. Lee, for the respondent. [MAJORITY — By the Court.—Larremore, J.] By the Court.—Larremore, J. [After stating the facts as above.]—The goods were sold to Gieve after the dissolution of the copartnership, and the levy under the execution gave the sheriff a valid and subsisting lien which he could have enforced by a sale. The proceeds of the sale in the hands of the receiver represented the goods levied upon by the sheriff as the individual property of Grieve, and were not a part of the assets of the Arm of which Lynch was appointed receiver. So far as this transaction is concerned there are no equities disclosed as between the plaintiff in this action and Lynch, who was not a party to it, which should prejudice his rights to collect the claim in dispute. The order appealed from should be affirmed. On appeal to the court of appeals this decision was affirmed without further opinion (73 N. Y. 599).