Opinion
November, 1922.
Jesse Weil, for plaintiff.
Laughlin, Gerard, Bowers Halpin, appearing specially for defendants.
The defendants, who are non-residents, appear specially and move to vacate the levy under a warrant of attachment and the order directing service of the summons and complaint upon the defendants. It is practically conceded, however, that they are not entitled to have set aside the order for service nor the service of process thereunder because of recent decisions of this court. Merkle v. Sable, N.Y.L.J. June 8, 1922; Whitman v. Vullo, Id. Aug. 8, 1922; Steindl v. Finkelstein, Id. Sept. 28, 1922. The question remains whether they are entitled to have set aside the levy under the attachment. A distinction seems to exist between motions to vacate an attachment and a motion to set aside a levy under the attachment. Herman v. Bailey, 20 Misc. Rep. 94. On motions of the first character the court will not consider the merits of the action ( Jones v. Hygienic Soap Granulator Co., 110 A.D. 298, 331), nor determine whether title to the property levied upon is in the defendant. Vogelman v. Lewit, 48 Misc. 625. On the other hand, since it is not the attachment, but the levy thereunder, that gives jurisdiction ( Haase v. Michigan Steel Boat Co., 148 A.D. 301), I am of the opinion that defendants whose property is claimed to have been levied upon are entitled to have the question of their title determined in order that they may be informed whether or not the court has jurisdiction to which they must submit. If the court has no jurisdiction they ought not to be required to appear; nor should they be called upon to risk a default and thus permit a judgment to be taken against them, with probable resulting loss to their business credit and standing and the possibility of a deficiency judgment for which they must hereafter answer in New York. Here a sharp question of fact is presented as to whether the goods shipped by the plaintiff to the defendants were in fact sold and delivered, or whether they were sent on consignment. If consigned, title thereto is in the plaintiff and not in the defendants. The conclusion of fact respecting defendants' title alleged in the moving papers is attacked by opposing proof of much force, and it seems to me that it is now incumbent upon the plaintiff to satisfy the court that the property levied upon is in fact the property of the defendants. See Civ. Prac. Act, § 232. The motion is granted to the extent of appointing a referee to take testimony and report with his opinion as to whether or not the property levied upon was in fact the property of the defendants. The motion, in so far as it asks to have vacated the order of publication and the service made thereunder, is denied. Decision on the motion, in so far as it asks to have vacated the levy under the attachment, is reserved until after the referee has reported. All proceedings on the part of the plaintiff, except to review this order, will be stayed until further order. Settle order on notice.
Ordered accordingly.