• I dissent. The motion in this case is to set aside a levy made by the sheriff under a warrant of attachment, in this action. No property of the defendant was taken into -the possession ■ of the sheriff, and if the .copy of the warrant of attachment and the notice-served ¡upon- the P.eghon Contracting Company was insufficient to attach the indebtedness of this corporation to-the defendant there was no levy. As I understand the .opinion of Mr. Justice. Clarke, he comes to the conclusion that there was no claim in favor of the defendant' against this contracting ..company that could .be enforced in this State, and consequently there was nothing upon which the *363sheriff could levy. If this is true, there was no levy and I do not see how the motion to vacate a levy can be granted.
I think that this 'question is one which should not be passed upon on a motion, but should be left to be regularly determined in proceedings taken to establish a lien by virtue of this action of the sheriff. I am aware that these applications have been entertained, and upon appeal the effect of an attempted levy has been passed upon by the court, but where' the whole right to maintain the action depends upon this question as. to whether or not there was a leviable claim existing in favor of the defendants against the party upon whom the attachment was served, it seems to me that the orderly course of proceeding Would be to. determine the question upon the proper proceeding and not upon a motion. It cer-. tainly is somewhat illogical for a defendant to come into court and say that the sheriff has made no levy and, therefore, move'to have a levy vacated. If there was no levy, there is nothing to be vacated. If there is a levy, it should not be vacated.
Without expressing any opinion upon the other questions dis-_ cussed by Mr. Justice Clarke, for the reasons stated 'I think the order should be affirmed.
O’Brien, P. J., concurred.
Order reversed, with ten dollars costs "and disbursements, and motion granted, with ten dollars costs. Order filed.