Opinion
May 31, 1949.
Appeal from Supreme Court, New York County.
The complaint attempts to state three causes of action against the collecting bank of a letter of credit on the theory that the documents presented, though correct in form, contained an underlying false statement. This was not evident on the face of the papers. The payment as made by the agent bank, which issued the letter of credit, was proper and could not be recovered by it from the defendant. There is therefore no basis for holding that the principal in the matter, namely, the plaintiff, is in any better position to recover the payment made, in the absence of an allegation of damage resulting to it from the payment.
The first cause of action asks to recover back the whole amount paid. The second cause of action asks for the difference between the face amount of the letter of credit and the amount actually expended for moving a certain sugar mill from Puerto Rico to Mexico. The third cause of action demands the full amount paid on the theory that the defendant personally paid no part of the said expense of moving. It suffices to say that the letter of credit made no stipulations relating to amounts actually expended by defendant, and was in form a promise to pay the full amount on the presentation of certain described documents.
There is no basis supporting a recovery stated in any of the causes of action.
The order appealed from should be reversed and the motion to dismiss the amended complaint granted, with $20 costs and disbursements to the appellant, with leave to plaintiff to replead.
Peck, P.J., Dore, Cohn, Van Voorhis and Shientag, JJ., concur.
Order unanimously reversed, with $20 costs and disbursements to the appellant, and the motion to dismiss the amended complaint granted, with leave to the plaintiff to replead. Settle order on notice.