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UNITED STATES EX REL. J. A. EDWARDS & CO. v. BREGM

December 3, 1957

UNITED STATES of America, for the Use and Benefit of J. A. EDWARDS & CO., Inc., Plaintiff,
v.
BREGMAN CONSTRUCTION CORP., New Amsterdam Casualty Company and Ben B. Greene, Inc., Defendants



The opinion of the court was delivered by: ZAVATT

This is an action under the Miller Act, 40 U.S.C.A. § 270a and § 270b. The defendant Bregman Construction Corp. entered into a contract with the United States to construct a special AAA facility at Lloyd Harbor, New York. This prime contract between the United States and the defendant Bregman is designated as Contract No. DA30-075 ENG 7083. Before this contract was awarded by the United States to the defendant Bregman the said defendant furnished to the United States a bond in compliance with 40 U.S.C.A. § 270a, which provides as follows:

'270a. Bonds of contractors for public buildings or works; waiver of bonds covering contract performed in foreign country

 '(a) Before any contract, exceeding $ 2,000 in amount, for the construction, alteration, or repair of any public building or public work of the United States is awarded to any person, such person shall furnish to the United States the following bonds, which shall become binding upon the award of the contract to such person, who is hereinafter designated as 'contractor':

 '(1) * * *

 '(2) A payment bond with a surety or sureties satisfactory to such officer for the protection of all person supplying labor and material in the prosecution of the work provided for in said contract for the use of each such person. * * *'

 Thereafter the defendant Bregman entered into a subcontract with the defendant Ben B. Greene, Inc., with reference to the project covered by the said prime contract. The defendant New Amsterdam Casualty Company is the surety company on the payment bond which the defendant Bregman furnished to the United States pursuant to 40 U.S.C.A. § 270a. J. A. Edwards & Co., Inc., alleges in its complaint that it furnished certain electrical materials and supplies to the said subcontractor in the performance of the work to be performed by the prime contractor under its said contract. The plaintiff is suing the prime contractor, its surety and subcontractor under 40 U.S.C.A. § 270b, which provides as follows:

 ' § 270b. Same; rights of persons furnishing labor or material

 '(a) Every person who has furnished labor or material in the prosecution of the work provided for in such contract, in respect of which a payment bond is furnished under section 270a of this title and who has not been paid in full therefore before the expiration of a period of ninety days after the day on which the last of the labor was done or performed by him or material was furnished or supplied by him for which such claim is made, shall have the right to sue on such payment bond for the amount, or the balance thereof, unpaid at the time of institution of such suit and to prosecute said action to final execution and judgment for the sum or sums justly due him: Provided, however, That any person having direct contractual relationship with a subcontractor but no contractual relationship express or implied with the contractor furnishing said payment bond shall have a right of action upon the said payment bond upon giving written notice to said contractor within ninety days from the date on which such person did or performed the last of the labor or furnished or supplied the last of the material for which such claim is made, stating with substantial accuracy the amount claimed and the name of the party to whom the material was furnished or supplied or for whom the labor was done or performed. Such notice shall be served by mailing the same by registered mail, postage prepaid, in an envelop addressed to the contractor at any place he maintains an office or conducts his business, or his residence, or in any manner in which the United States marshal of the district in which the public improvement is situated is authorized by law to serve summons.

 '(b) Every suit instituted under this section shall be brought in the name of the United States for the use of the person suing, in the United States District Court for any district in which the contract was to be performed and executed and not elsewhere, irrespective of the amount in controversy in such suit, but no such suit shall be commenced after the expiration of one year after the date of final settlement of such contract. The United States shall not be liable for the payment of any costs or expenses of any such suit.'

 The plaintiff moves for an order directing the defendant Bregman Construction Corp., by its President, Walter Bregman, to answer certain questions propounded upon the taking of the deposition of the defendant Bregman which its President refused to answer, and also moves for an order directing the said defendant Bregman to produce upon the examination of its said President and to permit the plaintiff to inspect and to copy 'any and all correspondence passing between the defendant, Bregman Construction Corp., and Ben B. Greene, Inc., dealing with the electrical subcontract * * *' as well as any and all correspondence passing between these two defendants with reference to 'all electrical material and supplies furnished in connection therewith and any and all books, records and correspondence showing or tending to show the electrical material and supplies incorporated in and made part of said construction project; * * *'.

 The moving papers do not specify the questions which it is claimed the President of the defendant Bregman refused to answer. The Court has examined the transcript (which was handed up upon the argument of this motion) and finds that the defendant Bregman, by its President, refused to answer questions as to:

 1. The procedure followed by defendant Bregman with reference to the monthly requisitions for payment received by the defendant Bregman from its subcontractor, Ben B. Greene, Inc. (pages 10-11 of the transcript).

 2. Whether the defendant Bregman made any inspections of the progress of the work performed by its subcontractor, Ben B. Greene, Inc. (page 11 of transcript).

 3. Whether the subcontractor, Ben B. Greene, Inc., prosecuted its work in accordance with the terms of the ...


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