Defendant Liston is not entitled to seek a vacatur of the attachment on the ground that title to the attached property is in third persons. This was the rule under the Civil Practice Act (Civ. Prac. Act, § 924; e.g., Stern Corp. v. Silverman, 257 App. Div. 394; Empire State Collateral Co. v. Cassel Custards, 29 Misc.2d 505; Tripp, op. cit. supra, § 137). Despite some change in language in the new practice statute, there has been no change in this respect (CPLR 6221; 7 Weinstein-Korn-Miller, op. cit. supra, pars. 6221.04, 6223.10).

name of the estate of defendant's deceased husband, upon the ground that the court lacked jurisdiction because of plaintiff's failure to serve a copy of the warrant on the ancillary administrator, as required by subdivision 2 of section 917 of the Civil Practice Act. Special Term, in view of the dispute as to whether the funds were owned by defendant, as claimed by plaintiff, or by the estate, as claimed by defendant, referred the issue of ownership to an Official Referee. The Referee reported that he found ownership in the estate, and his report was confirmed in one branch of the order on appeal, and the motion in its branch seeking to vacate and set aside the warrant of attachment and levy was granted. We need not reach the contention of plaintiff that the question as to whether title to the funds attached was in defendant or in the estate of her deceased husband can only be raised by affirmative defense in the defendant's answer and resolved upon the trial of the within action ( Stern Corp. v. Silverman, 257 App. Div. 394; Union Smoked Fish Co. v. Tillamook Bay Fish Co., 113 Misc. 360, affd. 195 App. Div. 893). Following the death of defendant's husband an ancillary administrator of his estate was appointed.

Under section 944-a, the Guaranty Trust Co. may (among other grounds) defend this action against it by seeking a "determination of the rights, if any, of any adverse claimants to said property or any part thereof which would be available to him if such action or special proceeding were brought by or in the name of the defendant [Hamburger] in the attachment action." It may be that Hamburger, the defendant in the action-in-chief, does not wish, or (assuming the desire) has no right, to move to vacate the levy on the ground that the property subjected to the levy is not its property (see Stern Corp. v. Silverman, 257 App. Div. 394). But, under subdivision 2 of section 924 the claimant himself "may intervene in any such action or proceeding then pending [instituted by the attaching sheriff to reduce the attached property to possession] and assert therein his right, title or interest in or to the said property."

There is considerable logic in the contention of the moving parties but this court is constrained to hold that under decisions of higher courts the directors of the dissolved corporation are restricted to the proceeding provided for under section 924 of the Civil Practice Act to procure the release of the property which has been attached. (Hibernia Nat. Bank v. Lacombe, 84 N.Y. 367; Stern Corp v. Silverman, 257 App. Div. 394; Dalinda v. Abegg, 177 Misc. 265, affd. 262 App. Div. 999; Auerbach v. Grand Nat. Pictures, Ltd., 176 Misc. 1031, affd. 263 App. Div. 712; McNelus v. Stillman, 172 App. Div. 307; Union Smoked Fish Co. v. Tillamook Bay Fish Co., 113 Misc. 360, affd. 195 App. Div. 893.) The parties do not agree as to the effect of the law of the State of Virginia and this makes the same a question of fact to be determined upon the trial of the action, or upon the trial of a proceeding instituted by the moving parties under section 924 of the Civil Practice Act.

There is considerable logic in the contention of the moving parties but this court is constrained to hold that under decisions of higher courts the directors of the dissolved corporation are restricted to the proceeding provided for under section 924 of the Civil Practice Act to procure the release of the property which has been attached. ( Hibernia Nat. Bank v. Lacombe, 84 N.Y. 367; Stern Corp v. Silverman, 257 A.D. 394; Dalinda v. Abegg, 177 Misc. 265, affd. 262 A.D. 999; Auerbach v. Grand Nat. Pictures, Ltd., 176 Misc. 1031, affd. 263 A.D. 712; McNelus v. Stillman, 172 A.D. 307; Union Smoked Fish Co. v. Tillamook Bay Fish Co., 113 Misc. 360, affd. 195 A.D. 893. ) The parties do not agree as to the effect of the law of the State of Virginia and this makes the same a question of fact to be determined upon the trial of the action, or upon the trial of a proceeding instituted by the moving parties under section 924 of the Civil Practice Act.

The issue of ownership may not be determined summarily upon this motion. The only remedy is for the defendant, if he so desire, to raise that issue by way of answer ( Stern Corp. v. Silverman, 257 A.D. 394; Dalinda v. Abegg, 177 Misc. 265, affd. 262 A.D. 999). The motion is denied.

Under the circumstances of this case, therefore, I think the proper course is to deny the motion with leave to the defendant to interpose an answer wherein, if desired, the issue of ownership of the property may be raised. That is what was done in Stern Corp. v. Silverman ( 257 A.D. 394, 395). It is true, as pointed out in the dissenting opinion in that case, that this results in forcing the defendant to answer upon the merits before a determination is had of a fact upon which jurisdiction depends, but that is not such an anomaly practically as it appears to be from a strictly logical view, and it is not the first time it has happened (See Toledo Railways Co. v. Hill, 244 U.S. 49; Fickett v. Higginbotham-Bailey-Logan Co., 162 Misc. 18) and it is the result approved by a majority of the Appellate Division and is the only course by which justice in this case can be done.