
    CLARK v. JOHNSTON et al.
    (Supreme Court, Appellate Division, First Department.
    December 9, 1910.)
    Appeal from Special Term, New York County, Action by William T. Clark, as ancillary administrator of James Mulligan, deceased, against Frank M. Johnston and other?. From an order granting a motion- to vacate levy of an attachment, plaintiff appeals. Affirmed.
    
      Louis C. Van Doren, for appellant. Gilbert E. Roe, for respondents.
   PER CURIAM.

Order affirmed, with $10 costs and disbursements.

INGRAHAM, P. J.

(dissenting). I do not think this levy should have been vacated. My view upon a motion of thF character is stated in my dissenting opinion in Bridges v. Wade, 113 App. Div. 362, 69 N. Y. Supp. 126. 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 I in this state, I think the question of the sufficiency of the levy should be determined upon la proceeding to enforce it, and not upon a mo¡tion 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, 107 N. Y. Supp. 860, 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.  