Opinion
March 6, 1961
Bertram Zweibon for receiver.
Liebman Schreier for Ace Steel Stair Co.
Sidney Posner for the Sheriff of the City of New York.
Donald J. Fleishaker for plaintiff.
Motion by court-appointed receiver of rents and profits of a mortgaged premises to release the levy of the Sheriff of the City of New York upon the tenants of said premises, to direct the said Sheriff to turn over all rents collected and to direct the tenants to attorn to the said receiver. The receiver was appointed on January 26, 1961, but the mortgage was recorded on December 14, 1959, and contains a provision for the assignment of rents. The judgment creditor gained his rights on January 6, 1961, when he recovered a valid judgment against the defendant corporation in Municipal Court. The judgment was delivered to the aforesaid Sheriff on January 25, 1961, but no levy was made until after January 26, 1961, when the court had already appointed the receiver. Personal property of a judgment creditor is usually bound by the execution "from the time of the delivery thereof to the proper officer to be executed" (Civ. Prac. Act, § 679, subd. 1), but where the levy is, as here, pursuant to section 687-a of the Civil Practice Act, then it is "bound by the execution from the time the levy is made, but not before" (Civ. Prac. Act, § 679, subd. 2). Therefore, the judgment creditor, intervenor here, had no lien prior to the receiver, and certainly no lien prior to the mortgagee. Under the circumstances, it is of no consequence that only the Sheriff, and not the judgment creditor, may be a proper party to this motion. The motion is in all respects granted.