Opinion
November 10, 1943.
The plaintiff appeals from an order of the Special Term dismissing the complaint herein pursuant to the provisions of rule 106 of the Rules of Civil Practice, upon the ground that it appears upon the face of the complaint that the said complaint fails to state facts sufficient to constitute a cause of action. The action is brought against the defendant bank as substituted trustee. It is claimed that the action of the bank in summary proceedings dispossessing the 565 Fifth Avenue Corporation from its interest in certain property constituted gross negligence. There is no dispute as to the facts and the sole question presented is as to the sufficiency of the complaint. While James W. Smith, the original plaintiff in this action, was the owner of $6,000 par value of bonds of the 565 Fifth Avenue Corporation at the time of the commission of the acts complained of, he had ceased to be a bondholder at the time of the commencement of the action. The failure to allege ownership of the bonds at the time of the commencement of the action is fatal to the complaint. ( Hanna v. Lyon, 179 N.Y. 107; Gellens v. Continental Bank Trust Co., 241 App. Div. 591; Meyer v. Lowry Co., 257 App. Div. 81; Pflug v. Dietz, 260 App. Div. 503; Miller v. Miller, 256 App. Div. 846, affd. 280 N.Y. 716.) The order dismissing the complaint should be affirmed. Order dismissing complaint affirmed, without costs, with leave to plaintiff to serve an amended complaint within twenty days from the entry and service of the order herein, if he is so advised. Crapser, Heffernan and Schenck, JJ., concur; Hill, P.J., and Bliss, J., dissent.