Opinion
July 16, 1968
Order, entered April 8, 1968, denying motion of defendants-appellants to dismiss the complaint and vacate the attachment, unanimously modified, on the law, to the extent of dismissing the complaint with leave to plaintiff to apply to Special Term for leave to serve an amended complaint ( Cushman Wakefield v. John David, Inc., 23 A.D.2d 827; Cyg-Knit Mills v. Denton Sleeping Garment Mills, 26 A.D.2d 800; Andlou Props. v. Grayck, 24 A.D.2d 716), and, as so modified, affirmed, with $50 costs and disbursements to appellants. The complaint fails to factually allege that the fraudulent conduct of defendants-appellants induced the sale of plaintiff's merchandise to defendant Fedeli. The fact that the complaint is demurrable does not require the vacatur of the attachment when the affidavits establish that plaintiff may have a cause of action which will support the attachment. ( Atlantic Raw Materials v. Almarex Prods., 154 N.Y.S.2d 993, 996-997.) This disposition is without prejudice to a renewal of the motion to vacate the attachment if permission for leave to amend is not applied for within 20 days after service of a copy of the order to be entered hereon.
Concur — Steuer, J.P., Capozzoli, McGivern, Rabin and McNally, JJ.