
    American Guarantee and Liability Insurance Company, Respondent, v. Public National Bank and Trust Company, Appellant.
    Supreme Court, Appellate Term, First Department,
    November 26, 1958.
    
      
      Moses & Singer (Lyonel E. Zunz and Alice Austin of counsel), for appellant.
    
      Samuel Komoroff for respondent.
   Per Curiam.

As amended by the court below, the complaint presently alleges a cause of action against but one defendant, Bankers Trust Company. To state a cause of action against that one defendant, the complaint alleges a conclusion of law — that the forgery bond insured defendant ‘ ‘ only in its capacity as a depositary bank ”. In this respect of course, the complaint is insufficient. Considering the pleading as a whole, it attempts to allege a cause of action by the bank against itself. To state a cause of action in the circumstances, the plaintiff must do more than the court below required, that is, properly designate the defendant. Since the pleader, as plaintiff, stands in the shoes of that defendant, the pleading must allege clearly and unmistakably ultimate facts stating a cause of action against defendant in its capacity as collecting bank.

The order so far as appealed from should be reversed, with $10 costs and disbursements, with leave to plaintiff to serve an amended complaint within 10 days after service of copy of order entered hereon, upon payment of said costs and disbursements.

Concur — Hoestadter, J. P., Aurelio and Tilzer, JJ.

Order reversed, etc. entire premises. The Business Bent Law (§ 12; L. 1945, eh. 314, as amd.) is “inapplicable * * * to space demised under a lease or sublease executed subsequent to March thirty-first, nineteen hundred fifty to a person not in possession at the time of the execution thereof.” There was evidence that the landlord accepted rent from the original lessee, with knowledge that the entire premises were occupied by another for the entire remaining term.  