Clark v. Johnston

No opinion. Present — Ingraham, P. J. (dissenting), Clarke, Scott, Miller and Dowling, JJ.

(dissenting): I do not think this levy should have been vacated. My view upon a motion of this character is stated in my dissenting opinion in Bridges v. Wade (113 App. Div. 362). Where a question is presented as to whether a levy is sufficient to obtain a lien upon an amount due to the defendant by a party who has been served with a warrant of attachment in this *927State, I think the question of the sufficiency of the levy should be determined upon a proceeding to enforce it, and not upon a motion to vacate it; but, assuming that a motion to vacate this levy was proper, I think the facts bring this case within Flynn v. White (122 App. Div. 780); that the liability in-favor of the defendant upon which this levy is made arose within this State; that that liability could be enforced within this State, and that the court below was, therefore, in error in vacating the levy. For the reasons stated I think the order should be reversed and the levy reinstated.