When the sheriff received the plaintiff’s execution, on the 12th of April, 1875, he also held several executions in favor of other creditors against the mining company, the defendant in the executions, and in virtue of the prior executions the sheriff had made a levy upon considerable property of the execution debtor. The levy was made prior to any proceedings in bankruptcy, and all that property so under levy was constructively in the possession of the sheriff, and not the property of the insolvent. (Ansonia Brass, etc., Co. v. Babbitt, 8 Hun, 157. Opinion by Talcott, J.)
Although the case was reversed by the Court of Appeals, upon an appeal from a second judgment, the opinion of that court, as delivered by Andrews, J., sustains this principle.
By delivery of the execution of the plaintiff to the sheriff on the 12th of April, 1875, the plaintiff acquired a lien upon the property then held by the sheriff (subject to prior executions), *454and upon all the other property in the couxxty of Jefferson belonging to the execution debtor,, except as against bona fide purchasers in good faith.
The title of the debtor was-not divested by filing a petition in bankruptcy, either to the personal or real estate. (U. S. Statute, § 5044; Hampton v. Rouse, 22 Wall. [U. S. R.], 273.
The order of 16th March, 1875, made by the District Court in terms restrained the sheriff “ from soiling or taking any further proceedings to sell or dispose of or interfering with the property of the Northern New York Iron and Mining Company, * # * or in any manner intermedling or interfering with tlxo property of the said The Northern New York Iron and Mining Company, until the further order of the court.”
This order was served upon the sheriff soon after it was made. The only effect of the order was to stay the action of the sheriff upon executions ; it did not undertake to divest him of the property under his levy, and such could not be its effect, as we have before seen. This order did not vacate or destroy the liens obtained by the sheriff, and he was still entitled to maintain his levy upon the property of the judgment and execution debtor, the mining company.
Such was the status of the sheriff towards the property of the the mining company, when on the 12th of April, 1875, he. received the execution issued upon the plaintiff’s j udgment. There is nothing in the terms of the oi’der of the sixteenth of March which could prevexxt the lien of the plaintiff’s execution attaching to the judgment debtors property then held under levy. (Peck v. Tiffany, 2 Comst., 451.) Nor to prevent the liexx acqxxired by possession of the execution npoxx axxy other property in the couixty of Jefferson belonging to the debtor, when the execution was received by the sheriff. (Hampton v. Rouse, supra; 3 R. S., 625 [6th ed.]; Camp v. Chamberlain, 5 Denio, 205; Ray v. Birdseye, 5 id., 619; Roth v. Wells, 29 N. Y., 471; Hale v. Sweet, 40 N. Y., 97.)
It appears that a petition was presented Apxúl 16, 1875, to the District Court by the presidexxt of the Northern New York Iron axxd Mining Coxnpaixy, and an order was made for the appointment of a special receiver on that day. This order is to the effect that Geox’ge W. Flower “ be axxd is hex’eby appoixxted special x’eceiver *455of the property and effects of said alleged bankrupt upon filing,” etc.
The receiver was authorized to mine and deliver such ore as may be necessary to fill a contract with the Rochester Iron Company, and to operate blast furnaces until the coal on hand is consumed.
This order contained a further provision that “none of the property to be delivered by said receiver until consent of all the parties holding liens thereon shall be filed with the register,” etc.
. Several of the execution creditors having given their consents, the sheriff surrendered to the special receiver the property held under his levy, and other property of the insolvent in the county was taken and converted. The plaintiff here gave no such consent, and the sheriff was in no way authorized by the plaintiff to surrender up the property under his levy, nor to let go any of the other property named or belonging to the insolvent and liable to the plaintiff’s execution.
The case is destitute of any evidence showing any effort on the part of the sheriff to retain such property, to resist its being taken by the receiver or to recapture it; nor did he bring any action to recover it and to retain it for the purpose of making the plaintiffs’s execution therefrom.
The second count of the complaint alleges “that the sheriff duly levied the said execution on sufficient property to fully satisfy the same, and that he could have made the money on the said execution within sixty days by a sale thereof * * * but that he neglected to do so : through his neglect the plaintiff suffered damages in the amount of said execution.”
Thus, it appears that this action is not only for a failure to return the execution, but for a failure of the sheriff to do his duty in the premises.
The evidence presented on the trial did not establish that .the sheriff had done all his duty hi the premises. As to this plaintiff' he had no right to surrender the property ; to allow the receiver to take that which was under his levy, or that upon which he acquired a lien by reason of the receipt of the plaintiff’s execution. The Ansonia Brass, etc., Co. v. Babbitt, 8 Hun, 162, establishes a principle that was applicable to the facts as they were presented upon the-trial.
*456It was there said “it was the duty of the sheriff to-> resort to all reasonable means to protect his levy, instead of which he appears to have surrendered the property without objection or remonstrance.” (Talcott, J.) : and Andrews, J., in delivering the opinion of the Court of Appeals in the same case, says : “It was the duty of the sheriff to retain the possession and sell the property to satisfy the execution and to take all reasonable -means to protect his levy; * * * so, also, he would have had a remedy against the assignee after the property was turned over to him. upon his refusal to surrender it. * * * The sheriff had a right to use all necessary force to protect his possession.”
Thus, it appears that upon the levy made by the sheriff in this case, he had the possession and title to so much of the execution debtor’s property as was needed to satisfy the execution which came to his hands prior to the proceedings in bankruptcy, and that it was his duty to sell the property, and hi doing so he would not have violated the terms of the order of the District Court, for that coidd not take effect upon property which belonged to the sheriff and not to the mining company. The District Court had no jurisdiction, even if the order had undertaken to divest the sheriff of his title and possession by a summary order, without notice to him or to the execution creditors. (Marshall v. Knox, 16 Wall., 551; O'Brien v. Weld, 92 U. S. R., 83; Smith v. Mason, 14 Wall., 419.)
The plaintiffs in the prior executions gave consents that the sheriff turn over the property to the special receiver, and it is insisted that thereby the executions became dormant, and that the plaintiff became entitled to the proceeds of any sales made. (Dunderdale v. Sauvestre, 13 Abb., 116; Price v. Shipps, 16 Barb., 585.) That question was not passed upon by the trial court, and when another trial shall take place the facts upon which the question depends may be more fully developed, and we, therefore, do not express any opinion in respect to it.
We think the trial judge fell into an error when he granted the motion for a nonsuit, and that the judgment should be reversed and a new trial ordered, with costs to abide the event.
*457Talcott, P. J. and Smith, J., concurred.Judgment reversed and a new trial ordered, with costs to abide the event.'