(dissenting). The majority opinion well analyzes the situation and delineates the problem. However, I cannot agree that a restraining notice pursuant to CPLR 5222 (subd. [b]) has no priority consequences in this situation, even though there may be some difference as to what those consequences should be. (See Enforcement Priorities and Liens: The *359New York Judgment Creditor’s Bights in Personal Property, by Distler and Schubin, 60 Col. L. Rev. 458, 484.)
To ignore the restraining notice, as Conroy, J. stated in Matter of City of New York (Nassau Expressway) (56 Misc 2d 602, 605 [Spec. Term, Queens County, 1968]), “is to make a mockery of the provisions of CPLR 5222.”
In analyzing the Nassau Expressway case, the excellent Supplementary Practice Commentary (1968) by Professor David D. Siegel has the following:
“ The result is a fair one, but must be approached cautiously because of its obvious inconsistency with the legislative history of CPLB 5222. The court was fully aware of this, but felt that to do otherwise would, leaving the judgment creditor to proceed only against the debtor, afford the former ‘ a near impotent remedy ’. The contested assignment itself was the vehicle divesting the judgment debtor of the assets P sought.
“ The court’s action can be justified, not as a battle between lienors, because neither P nor the assignees were formally that, but on the ground that CPLB 5234, since neither an execution nor order was involved, was inapplicable and irrelevant, leaving only the equities between P and the assignees to govern disputed rights between them. The equities were unquestionably with P, whose status as a judgment creditor was higher than that of the general creditors. The diligence of a creditor who reduces his debt to judgment deserves reward whenever a competing creditor with a CPLB 5234 lien is not in the picture. No such lienor being in the picture, the Nassau case need not be looked at as a ‘ lien ’ problem.” (1972-73 Pocket Part to CPLB 5222, p. 93.)
On balance, the decision at Special Term was correct and should be affirmed.
Markewich, Nunez and Murphy, JJ., concur with Stevens, P. J.; Kupferman, J., dissents in an opinion.
Judgment, Supreme Court, New York County, entered on February 28, 1973, reversed, on the law, and vacated, without costs and without disbursements, and the petition dismissed.