David S. Stern Corp. v. Silverman

Callahan, J. Plaintiff attempted to obtain jurisdiction of the defendants by service of a summons personally without the State after making an alleged levy under a warrant of attachment on goods within the State. Defendants moved to set aside the service on the ground that the goods levied on were not the property of the defendants. The issue of fact concerning the ownership of these goods was sent to a referee, who found that they were the property of a third person. Based on that finding the Special Term vacated service. The- appellant contends that there is no authority for this procedure, but that the question whether title to the seized chattel was in defendants or a third person can only be determined by proceedings in compliance with section 924 of the Civil Practice Act. This contention is sustained by the case of Union Smoked Fish Co., Inc., v. Tillamook Bay Fish Co. (113 Misc. 360; affd., 195 App. Div. 893). The order so far as appealed from should, therefore, be reversed, with twenty dollars costs and disbursements to the appellant, and the motion in all respects denied, with leave to the defendants, on payment of said costs, to interpose an answer wherein, if desired, the issue of ownership of the goods attached may be raised. (Muslusky v. Lehigh Valley Coal Co., 225 N. Y. 584, 587.) Martin, P. J., and Cohn, J., concur; Townley and Untermyer, JJ.. dissent.