Opinion
June 24, 1940.
Appeal from order denying plaintiff's motion for summary judgment under rule 113 of the Rules of Civil Practice, in an action to recover the principal amount of two $1,000 bonds issued by the defendant and owned by the plaintiff. Order affirmed, with ten dollars costs and disbursements. The theory of the plaintiff is that the face of these bonds is due and payable because of a claimed breach by the defendant of certain sinking fund obligations, which obligations are not contained in the bonds upon which the plaintiff sues but are contained in the trust indenture or mortgage which is the security for the bonds. The plaintiff did not allege compliance with the requirements of the trust indenture in the event of a breach of the character invoked. In the absence of such allegations and proof, the trustee is the only one who may maintain an action against the defendant in respect of such a breach. Lazansky, P.J., Hagarty, Carswell, Taylor and Close, JJ., concur.