J. Ballay & Co. v. Nelson Line, Inc. , 280 A.D. 860 ( 1952 )

We think that plaintiff was entitled to a determination of its rights to reach the property levied on beyond a determination of the narrow issue of title. Plaintiff asserts the right to levy on the property by virtue of section 107 of the Personal Property Law. That question was not determined by the Referee or the order appealed from, nor was it concluded by the decree of the United States District Court, which left open any question of prior liens. Order unanimously reversed, with $20 costs and disbursements to appellant, and the matter remitted to Special Term to determine whether plaintiff is entitled to avail itself of the provisions of the Personal Property Law. It may be appropriate to observe, however, that plaintiff may avail itself of such rights as it has as a mortgagee, which rights were reserved to plaintiff by the order appealed from. Settle order on notice. Present — Peek, P. J., Callahan, Van Voorhis, Heffernan and Bergan, JJ. [See post, p. 921.]