The opinion of the court was delivered by: BYERS
This is an action upon a bond required by 40 U.S.C.A. § 270a(2), namely, a payment bond "for the protection of all persons supplying labor and material in the prosecution of the work * * *", namely, that specified in a contract entered into by Reuben Malkin, Inc., with the United States Government, concerning work done at 201 Varick Street (U.S. Appraiser's Stores) New York City.
It sufficiently appears that there was such a contract and that the contractor did not pay in full for the labor involved, and that some resultant liability attached to the defendant Surety Company.
It is necessary to determine the amount remaining unpaid by the contractor, and the persons who are entitled to judgment under the bond, and the amounts due.
The evidence, as a whole, is confused, fragmentary and in some respects quite difficult of acceptance.
The use-plaintiffs are Irving Dorfman and Barney Shapoff, who assert that they were subcontractors as to all the exterior painting, and that they are entitled to recover an alleged unpaid balance owing to them under the said subcontract.
For reasons to be stated, it will be found that they were not subcontractors but coforemen employed by the contractor, and their recovery must be limited to the amount remaining unpaid of their wages.
By order of January 15, 1941, Hyman Kenoff was permitted to intervene as a use-plaintiff, and he asserts that he was employed by Dorfman and Shapoff as a painter on the job, and that $131.25 of his wages remains unpaid.
It was stipulated on the trial that that is the correct amount of his claim.
The original complaint, filed December 8, 1939, named the Surety Company and Herman Katz as defendants and, in addition to the matters above stated and for a second cause of action, alleged that during the prosecution of the contract the defendant Katz loaned to the contractor Malkin the sum of $545, which was delivered to Dorfman and Shapoff, and by them applied toward the pay rolls of their laborers, and that the said $545 was included in the sum of $1,033 alleged in the first cause to have been paid by the contractor; that Katz had instituted an action to recover the $545 from Dorfman and Shapoff, and that they deny having done the borrowing, and that they were in doubt as to whether they were liable to Katz for any part of the moneys advanced by him.
On December 26, 1939, Katz filed a cross-complaint and answer, in which it was asserted that the said $545 was loaned by him to Dorfman and Shapoff to be used for the payment of labor; and for his cross-complaint against the Surety Company, the Malkin contract was alleged, and that during the months of April, May and July, 1939, Katz, at the joint request of Malkin and Dorfman and Shapoff, "caused to be performed certain labor and services consisting of painting in connection with" the said contract, of the reasonable price and value of $545, and judgment was sought against the defendant Surety Company for that sum.
There was subsequent procedural activity in great volume, and to little apparent purpose, none of which seems to require present recital.
It also appears that certain laborers, who were not paid, have filed labor claims with the Federal Works Agency for wages owing to them, namely:
Eric Holm $27.50
Karl Jensen 23.50
Charles Jensen 23.50
Eddie Schnitzer 85.00
as the result of which, the total sum of $159.50 was withheld from the final payment on the Malkin contract, and apparently those sums are now in the custody of the Comptroller General for the benefit of the claimants. While those sums were not paid by the contractor, they have been earmarked for the workmen, and are available to them.
It seems that the exterior painting embraced within the Malkin contract was done during a period of seven weeks, commencing about April 17, 1939, and ...