V. Loewer's Gambrinus Brewery Co. v. Lithauer

There are cross-appeals herein. It seems too late to question here the authority of the defendant officially to levy under the execution. Indepéndently also of the question whether the lien of the chattel mortgage or that of the execution was prior in time, it seems to us that the court below should have dismissed the complaint upon the proof of the order of the defendant as marshal to Lewis Levy as marshal, he at that time holding the writ of replevin. The defendant thereby parted with possession, transferring it in obedience to the writ. That order subsequently appeared in plaintiff’s possession.

Present: Scott, P. J., Beach and Fitzgerald, JJ.

Judgment reversed and new trial ordered, with costs to abide event.