I cannot concur with Mr. Justice Rumsey in his opinion. This is an appeal from an order of the Appellate Term, which affirmed an order of the City Court denying a motion to vacate a judgment entered in favor of the plaintiff against the defendant, on the ground that no levy had been made under the attachment granted in the action, and, as the summons was served by publication, tlié plaintiff was'not entitled to enter a judgment without proof of such levy.
It seems to have been conceded, in the court below that the right to enter a judgment depended upon the proof of a levy ujjon some property of the defendant appellant under the attachment in the action. The defendant appealing is a non-resident of this State residing in the State of Louisiana, and the only property that it is claimed he had within this State arose from tile fact that a life insurance company doing business here had issued to such defendant a policy of life insurance by which he would in the future, upon the payment of the premiums provided in this policy, be *234entitled to receive from such insurance company a sum of money. The only act of the sheriff -by which a valid levy upon this; policy of insurance is claimed was the service, of a notice of the attachment upon the insurance' company. ' It is* not claimed that there was any sum of money due by the insurance company to the plaintiff at the; timé of' the alleged' levy,, or at thé time of the entry of -the judg-i ment; nor does it appear that' this defendant would ever be entitled to recover "any sum of money against this insurance company'. It .is alleged that the surrender value of the. policy is $500, but the terms of the policy .'are not disclosed; nor does-it appear upon what this allegation of the. plaintiff, who certainly can have no .personal knowledge! of the terms or conditions of. the policy, is based. The' property uipon which the sheriff can levy under a warrant of attachment is. specified in Sections 6.44 to 648 of the' Code inclusive. The only section that relates to this species of- property is section - 648,; which' provides that “ the attachment may also be levied Upon . a cause of action arising upon contract, ihclüding a bond, promissory note or other instrument for the payment of money only; negotiable Or otherwise, whether past due, or yet to become due, executed by a foreign or domestic government, State,. coimty, public officer, association, municipal or other .corporation, -or ' by a private person, either within or- without the State, which belongs to the defendant, and is found within the county.”. This provision thus provides for a levy upon a cause Of action arising upon a contract which belongs to the defendant and is found within the county. It'se'ems to ine that for several reasons this policy of insurance does ■ not -come within this section. In the first place, there is no cause of action that at present exists in favor of this defendant against the insurañee company. The right to levy is upon a cause of action arising upon 'a contractj-not upon a contract executory in its nature^ under whieh no liability at present exists, aiid upon which a cause of action. may never arise; and, in the second place, by the.express provisions of the..section a cause of action arising-upon a contract can never be levied upon, unless -the contract is found within the county. ■ The. language as "to this condition, “ and is found within the coimty,” is somewhat peculiar. Whether it relates to the cause of action, or to the contract upon which the cause of action is based, is somewhat, uncertain; but from the nature of the property that is spoken of, it *235must, I think, be held that the words used apply to the contract, and not to the cause of action. The cause of action itself is an intangible thing which cannot be said to be found anywhere. A contract upon which the cause of action depends, is something tangible, and upon which a levy can be made. The Code does not say that a levy can be made upon a cause of action where the debtor can be found within the county, but a levy can be made upon a cause of action arising upon a contract when it can be found within the county, clearly indicating, I think, a limitation to this right to levy under a warrant of attachment under such circumstances to a case in which the contract itself, upon which the cause of action is based, can be taken possession of by the sheriff, and thus the levy made effectual. That this was the intention of the Legislature seems to me do follow from section 64D of the Code, "which provides how a levy under a warrant of attachment may be made. By subdivision 2 of that section it is provided that a levy may be made upon personal property capable of manual delivery, including a bond, a promissory note or other instrument for the payment of money, by taking the same into the sheriff’s actual custody; and, by subdivision 3, it is provided that .a levy may be made upon other personal property by leaving a certified copy of the warrant and a notice showing the' property attached with the person holding the same; or, if it consists of a demand, other than as specified in the last subdivision, with the person against whom it exists.
Now this claim does not come within either of those subdivisions, unless it may be included within the second, winch includes “ a bond, a promissory note or other instrument for the payment of money.” In that case the levy was not complete because the sheriff did not take the instrument into his actual custody. The claim against the insurance company was not a demand other than as specified in subdivision 2 of the section so as to bring it within ■ the provisions of subdivision 3, because it is eoncede'd that no present demand against this insurance company exists. There is simply an executory contract by which, in the future, the defendant may become entitled to a sum of money from the insurance company, but which depends upon the compliance by the plaintiff with the terms of the policy, the right to enforce which will remain with the *236defendant,,' and dhe'/ser vice of this attachment would not be a bar-to an action by-the'defendant in another jurisdiction' to -recover ■ the amount" due upon the policy in the event of any' liability' subse^quentiy accruing. '. ’ ''
I think the order -appealed from should be reversed .and the motion-to vacate the'judgment granted. s'• • -
Patterson, J., concurred.
Order affirmed, with costs.