The Eastern Steel Company v. Globe Indemnity Company

Appeal, by permission, from a judgment • of the Appellate Division of the Supreme Court in the first judicial department, entered December 17, 1918, which unanimously affirmed a judgment in favor of defendants entered upon an order of Special Term sustaining a demurrer of one of the defendants to the complaint and granting a motion by the other defendants for judgment on the pleadings. Wills & Marvin Co. (not a party herein) on January 6, 1913, entered into a contract with the city of New" York to do certain work and furnish certain materials in connection with the Brooklyn Institute of Arts and Sciences, at the same time filing with the proper authorities of the said city a bond conditioned for the faithful performance of the said contract with the three defendants herein as sureties. Some time thereafter Wills & Marvin Co. entered into a contract with the plaintiff, a foreign corporation, which as subcontractor agreed to. furnish certain materials required under said contract at the price of $127,891.76. The complaint alleged that all of said sum was paid to plaintiff except $21,915.56, for which amount it sued. The bond contained the following clause: “ and shall promptly make payments of the sums due to all persons supplying labor and materials in the prosecution of the work provided in the said contract,” upon which plaintiff relied. The complaint was dismissed upon the ground that the bond ran to the city of New York, and presumably was executed solely for its benefit and not for that of subcontractors.