Herbert F. Darling, Inc. v. City of Niagara Falls

New York Court of Appeals

Herbert F. Darling, Inc. v. City of Niagara Falls

404 N.E.2d 1332, 49 N.Y.2d 855, 427 N.Y.S.2d 791, 1980 N.Y. LEXIS 2214

CourtNew York Court of Appeals

DecidedMarch 20, 1980

StatusPublished

Cited by5 cases

This text of 404 N.E.2d 1332 (Herbert F. Darling, Inc. v. City of Niagara Falls) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Herbert F. Darling, Inc. v. City of Niagara Falls, 404 N.E.2d 1332, 49 N.Y.2d 855, 427 N.Y.S.2d 791, 1980 N.Y. LEXIS 2214 (N.Y. 1980).

Pincite

Opinion

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

International Fidelity Insurance Company was surety for Payload Construction on its contract with the City of Niagara, but its obligation on the bond terminated by agreement with the city on July 10, 1974. It was not until August 27, 1974 that plaintiff contracted with Payload’s successor, C.I.C. Enterprises, the surety for which was Summit Insurance. International’s general denial was sufficient as a matter of pleading to raise the issue that it had never become obligated to plaintiff because its bond had terminated before plaintiff became a subcontractor on the project. Therefore, there was [857]*857no reason for it to plead the city’s release of it from its contract as an affirmative defense. Since plaintiff presented no evidentiary facts to show that International’s bond had not been terminated before plaintiff became C.I.C.’s subcontractor, the complaint was properly dismissed.

Chief Judge Cooke and Judges Jasen, Gábrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

Order affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

International Fidelity Insurance Company was surety for Payload Construction on its contract with the City of Niagara, but its obligation on the bond terminated by agreement with the city on July 10, 1974. It was not until August 27, 1974 that plaintiff contracted with Payload’s successor, C.I.C. Enterprises, the surety for which was Summit Insurance. International’s general denial was sufficient as a matter of pleading to raise the issue that it had never become obligated to plaintiff because its bond had terminated before plaintiff became a subcontractor on the project. Therefore, there was [857]*857no reason for it to plead the city’s release of it from its contract as an affirmative defense. Since plaintiff presented no evidentiary facts to show that International’s bond had not been terminated before plaintiff became C.I.C.’s subcontractor, the complaint was properly dismissed.

Chief Judge Cooke and Judges Jasen, Gábrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

Order affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

404 N.E.2d 1332, 49 N.Y.2d 855, 427 N.Y.S.2d 791, 1980 N.Y. LEXIS 2214, Counsel Stack Legal Research, https://law.counselstack.com/opinion/herbert-f-darling-inc-v-city-of-niagara-falls-ny-1980.

Opinion

Related

Cite This Page — Counsel Stack