People's Oil Co. v. Nichols Mobil Service

Cross appeals from an order of the Supreme Court at Special Term, entered April 22, 1980 in St. Lawrence County, which confirmed an order of attachment as to three defendants and vacated it as to three other defendants. Order affirmed, without costs. No opinion. Kane, J. P., Casey and Weiss, JJ., concur.

Mikoll and Herlihy, dissent and vote to modify in the following memorandum by Herlihy, J.

The plaintiff seeks to recover moneys allegedly wrongfully withheld from it and converted to other assets by the defendants. Special Term has vacated an order of attachment as to three defendants and the only substantial issue is whether it should have vacated the order as to any party defendant. It is undisputed that the defendants Beatrice Nichols, Judy M. Nichols and Deborah Nichols participated in the operation of what reasonably appears to have been the family business known *1069as Nichols Mobil Station. As found by Special Term, there is a sufficient factual demonstration to prima facie establish the connection of Leonard F. Nichols, Sr., with the business. The same evidence tends to establish that his wife, Beatrice Nichols, holds assets directly traceable to her participation in the business. Upon the present record, a vacatur of the attachment is not warranted as to any of the defendants and it should not have been vacated in any part prior to disclosure and motion for summary judgment or trial, if necessary. It is better practice in actions involving multiparties to deny such preliminary motions. The order should be modified by deleting so much thereof as vacated the order of attachment as to three defendants and by granting the motion to confirm in its entirety.