54 A.D.2d 660 | N.Y. App. Div. | 1976
Order, Supreme Court, New York County, entered March 31, 1976, granting plaintiff’s motion to vacate a prior order dismissing the complaint as to defendants-appellants, and, upon reargument and reconsideration, reinstating the complaint against defendants-appellants, unanimously modified, on the law, so as to dismiss the complaint and sever the action against defendant-appellant Mercantile Bank of Israel Limited, and, as so modified, affirmed, without costs, and without disbursements. Plaintiff, an Israeli coat manufacturer, ordered textiles from the defendants other than appellants. In connection with this transaction, appellants, Mercantile Bank of Israel Limited (Mercantile) and Israel Discount Bank Limited (IDB), handled a letter of credit opened on plaintiff’s behalf. Mercantile issued the letter in Israel at the request of A. Irani Ltd. (Irani) an Israeli corporation, in favor of Colonial Coated Textile Corp. (Colonial), and forwarded it to the New York branch of IDB for the purposes of advising Colonial thereof and of making payment thereunder. Plaintiff claims that Irani acted as his agent. Plaintiff alleges, in that part of the complaint as relates to appellants, that Colonial altered the letter of credit and that IDB, having knowledge of the alteration, nevertheless paid Colonial against the said document. Appellants’ motion to dismiss was granted on the ground that plaintiff did not have capacity to sue. Plaintiff moved pursuant to CPLR 5015 for an order