119 Misc. 509 | N.Y. Sup. Ct. | 1922
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 App. Div. 298, 331), nor determine whether title to the property levied upon is in the defendant. Vogelman v. Lewit, 48 Misc. Rep. 625. On the other hand, since it is not the attachment, but the levy
Ordered accordingly.