
    Midtown Bank of New York, Respondent, v. National Surety Company, Appellant. (Second Action.)
    First Department,
    March 24, 1933.
    
      C. Arthur Levy, for the appellant.
    
      Samuel N. Leiterman of counsel [Arnold E. Feldman with him on the brief; Sherman & Goldring, attorneys], for the respondent.
   Per Curiam.

The cause of action allowed to be pleaded by way of amendment of the complaint is on an instrument which contains a distinct and separate liability of defendant from that which is alleged in the original complaint.

We think this may not be permitted and that the order of resettlement is incorrect and should be reversed, with twenty dollars costs and disbursements to the appellant, and the motion to resettle the said order entered on November 10, 1932, denied, with ten dollars costs.

Finch, P. J., McAvoy, Martin and O'Malley, JJ., concur; Townley, J., dissents.

Order entered November 25, 1932, so far as appealed from, reversed, with twenty dollars costs and disbursements, and motion to resettle order entered on November 10, 1932, denied, with ten dollars costs.  