Opinion
May 11, 1971
Order, Supreme Court, New York County, entered on September 10, 1970, granting defendant's motion to dismiss the complaint herein for legal insufficiency, unanimously reversed, on the law, and the motion denied. Appellant shall recover of respondent $50 costs and disbursements of this appeal. The complaint, in effect, charges defendant, as collecting bank, with breaching its duty to remit funds actually collected on plaintiff's behalf. It is alleged that defendant procured drawee's acceptance to each draft and said drawee's direction that its funds, on deposit with defendant, be remitted to plaintiff in payment of those drafts. Defendant is charged with refusing to remit after collecting, and, accordingly, a valid cause of action is alleged. We have merely passed upon the sufficiency of the complaint and have no opinion whatever as to the merits.
Concur — Stevens, P.J., Capozzoli, Nunez and Kupferman, JJ.