Adams v. Elliott

In support of the motion, it was insisted that there was no actual and *221sufficient levy upon the property as against the landlord, prior to the accruing of the rent, that to constitute a valid and effectual levy as against third parties, it is essential that the property levied upon should come under the view of the officer. Van Wyck vs. Pine, 2 Hill, 666.

Held, that the extent and sufficiency of the levy were fair questions to be submitted to a jury, but that as the levy upon some portion of the property seemed to be sufficient, (some portion of the property having come under the view of the officer,) and inasmuch as the proceeds of the sale had been mingled by the sheriff, so that the court had not the power of discriminating; the motion should be denied, but without prejudice to the landlord’s action against the sheriff.

Rule accordingly.