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Triple Cities Const. Co. v. Dan-Bar Contracting Co., Inc.

Supreme Court of New York, Appellate Division

December 28, 1954

Triple Cities Const. Co.
v.
Dan-Bar Contracting Co., Inc.

APPEAL from an order of the Supreme Court at Special Term (NEWMAN, J.), entered September 28, 1954, in Broome County, which denied a motion of defendant-appellant (1) for judgment on the pleadings, dismissing the complaint, and (2) for the cancellation of a public improvement lien filed by plaintiff.

Page 300

COUNSEL

William F. Conway for appellant.

James B. Gitlitz for respondent.

Ringwood & Pasqua for defendant.

Page 301

HALPERN, J.

This is an appeal from an order denying the motion of the defendant Maryland Casualty Company for judgment on the pleadings and for the cancellation of a public improvement lien filed by the plaintiff.

The plaintiff had performed labor and supplied materials under a subcontract with the defendant Dan-Bar Contracting Co., Inc. (hereinafter referred to as Dan-Bar), which had entered into a general contract with the State of New York for the construction of certain public highways. The defendant Maryland Casualty Company (hereinafter referred to as Maryland) had executed a labor and material bond to the State, in connection with the general contract. The material parts of the bond read as follows: 'Whereas, the Comptroller of the State of New York, under the terms of Chapter 707 of the Laws of 1938, has required this bond guaranteeing prompt payment of moneys due to all persons supplying the contractor or a subcontractor with labor and materials employed and used in carrying out the contract, which bond shall inure to the benefit of the persons supplying such labor and materials. Now therefore, the condition of the foregoing obligation is such, that if the said Principal shall promptly pay all moneys due to all persons supplying the contractor or a sub-contractor with labor and materials employed and used in carrying out the contract, then this obligation shall be null and void, otherwise, to remain in full force and virtue.'

The statute (L. 1938, ch. 707) referred to in the bond is now section 137 of the State Finance Law and, so far as here material, it reads as follows: 'In addition to other bond or bonds, if any, required by law for the completion of a work specified in a contract for the prosecution of a public improvement for the state of New York, or in the absence of any such requirement, the comptroller may nevertheless require prior to the approval of any such contract a bond guaranteeing prompt payment of moneys due to all persons supplying the contractor or a subcontractor with labor and materials employed and used in carrying out the contract, which bond shall inure to the benefit of the persons supplying such labor and materials. In order to secure any rights and benefits conferred herein, laborers having claims for unpaid wages shall file and enforce a wage claim as provided by the labor law or shall file and enforce a mechanic's lien pursuant to the provisions of the lien law, and a materialman, in order to secure any such rights and benefits, shall file and enforce a mechanic's lien pursuant to the provisions of the lien law.'

Page 302

The plaintiff brought this action against the defendant Dan-Bar to recover a balance of $61,746.63 alleged to be owing under the subcontract and against Maryland to recover upon the labor and material bond, a copy of which is annexed to and made a part of the complaint.

The complaint did not contain any reference to the filing of a mechanic's lien by the plaintiff or to any proceeding for the enforcement thereof, in accordance with the second sentence of section 137 of the State Finance Law quoted above.

The defendants interposed a joint answer, setting up various defenses and counterclaims alleging that the plaintiff had failed to perform its work properly and also alleging that the plaintiff owed the defendant Dan-Bar certain ...


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