Gifford-Wood Co. v. Travelers Indemnity Co.

42 Misc. 2d 962, 249 N.Y.S.2d 317, 1964 N.Y. Misc. LEXIS 1783

Opinion

De Forest C. Pitt, J.

This is a motion by defendant, the Travelers Indemnity Company, for an order dismissing the complaint upon the ground that the court has no jurisdiction of the subject matter.

This action is brought by plaintiff, a subcontractor, against defendants, the prime contractor and its surety, upon a bond executed pursuant to the requirements of the Miller Act (II. S. Code, tit. 40, § 270a-§ 270e). Such bond was given to secure performance and payment by the prime contractor under a contract entered into between it and the United States Government. It is contended that exclusive jurisdiction in this action, brought on the payment and performance bond, rests with the United States District Court under the terms of section 270b of title 40 of the United States Code. Such section reads in pertinent part as follows: “ (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 ’ ’.

A review of the authorities clearly shows that State courts have consistently refused to entertain suits against sureties on bonds executed under the Miller Act. (Alieva v. Maryland Cas. Co., 248 App. Div. 599; Gardner v. Roberts-Nash Constr. Corp., 104 N. Y. S. 2d 657.) Accordingly, defendant’s motion should be granted.