Krider Building Material Co. v. Consolidated Indemnity & Insurance

241 A.D. 768

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 15, 1934
• Status: Published

Opinion

Judgment in so far as it dismisses the complaint against the Consolidated Indemnity and Insurance Company reversed on the law and the facts, with costs, and judgment directed in favor of plaintiff against said defendant in the sum of $12,493.46, with interest from the 12th day of September, 1929, with costs. The vice-president of the defendant Consolidated Indemnity and Insurance Company, in charge of protecting the interests of said company in connection with the surety bond and its obligations thereunder, and the engineer employed by said company in superintending and completing the apartment houses and in full charge of the work, had power, right and authority to bind the company by their agreement that the company would undertake to pay plaintiff for materials furnished and delivered to defendant Percy Boulevard Corporation prior to September 12, 1929. (Twyeffort v. Unexcelled Mfg. Co., Inc., 263 N. Y. 6, 9; Hardin v. Morgan Lithograph Co., 247 id. 332, 338.) This agreement was not void under section 31 of the Personal Property Law. It was an original promise founded on a new consideration moving to the respondent insurance company and beneficial to it. (White v. Rintoul, 108 N. Y. 222, 227; Parisi v. Hubbard, 226 App. Div. 280; Almond v. Hart, 46 id. 431, 435; Emerson v. Slater, 22 How. [U. S.] 28, 43.) The first conclusion of law is reversed and this court makes a new conclusion of law as follows: There was a binding and valid agreement founded on a new consideration between the plaintiff and the defendant Consolidated Indemnity and Insurance Company, made by officers authorized to act, whereby said defendant undertook and agreed to pay the plaintiff for any materials furnished and delivered to defendant Percy Boulevard Corporation prior to September 12, 1929; and plaintiff is entitled to judgment against the defendant Consolidated Indemnity and Insurance Company for the sum of $12,493.46, with interest from September 12, 1929, together with the costs and disbursements of this action. Defendants’ proposed findings of fact numbered “ 11,” “ 18 ” and “ 19,” which have been found at Trial Term, are hereby reversed as inconsistent with other findings made and as not supported by the evidence; and defendants’ proposed conclusion of law numbered “ 1 ” is disapproved. Lazansky, P. J., Hagarty, Scudder, Tompkins and Davis, JJ., concur.