Pezenik v. Massachusetts Bonding & Insurance

City of New York Municipal Court

Pezenik v. Massachusetts Bonding & Insurance

135 Misc. 642, 238 N.Y.S. 706, 1930 N.Y. Misc. LEXIS 939

CourtCity of New York Municipal Court

DecidedJanuary 9, 1930

StatusPublished

Cited by1 cases

This text of 135 Misc. 642 (Pezenik v. Massachusetts Bonding & Insurance) is published on Counsel Stack Legal Research, covering City of New York Municipal Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Pezenik v. Massachusetts Bonding & Insurance, 135 Misc. 642, 238 N.Y.S. 706, 1930 N.Y. Misc. LEXIS 939 (N.Y. Super. Ct. 1930).

Pincite

Opinion

Evans, J.

The action is on a building contract bond. It contains the usual agreement creating a short period of limitation, reading, so far as pertinent, as follows:

“ Second. That no claim, suit or action by reason of any default shall be brought against the Principal or Surety after the expiration of six months next succeeding to the date specified for the completion of said contract, * * *.”

The date of completion, specified in the contract, is May 1, 1925. On July 17,1925, the contractor abandoned the work without cause. November 1, 1925, was the last day to bring the action. The action was brought thereafter. Plaintiff relies entirely on Comey v. United Surety Co. (217 N. Y. 268). There the bond read that if any suits at law or proceedings in equity are brought against said surety to recover any claim thereunder, the same “ must be instituted within six months after the completion of the work specified in said contract.”

There is a wide difference between a period of limitation, specifying that it begin to run on “ the date specified for the completion of the work ” and one that begins to run from “ the completion of the work.” In the latter instance the time which puts the limitation in operation is indefinite and uncertain, depending upon the time when the work is completed; whereas, in the former instance, the time is well fixed, and the time when the work is [643]*643actually completed has no relation to the date when the limitat.'on begins to operate. In the latter instance the limitation postulates completion. (Comey v. United Surety Co., supra.) In the former there is no dependence whatever on completion of the work. At bar the bond specifies as certain a day as if it contained the definite date of May 1, 1925, beginning the period of limitation. The action not having been brought within the period, the complaint must be dismissed.

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Evans, J.

The action is on a building contract bond. It contains the usual agreement creating a short period of limitation, reading, so far as pertinent, as follows:

“ Second. That no claim, suit or action by reason of any default shall be brought against the Principal or Surety after the expiration of six months next succeeding to the date specified for the completion of said contract, * * *.”

The date of completion, specified in the contract, is May 1, 1925. On July 17,1925, the contractor abandoned the work without cause. November 1, 1925, was the last day to bring the action. The action was brought thereafter. Plaintiff relies entirely on Comey v. United Surety Co. (217 N. Y. 268). There the bond read that if any suits at law or proceedings in equity are brought against said surety to recover any claim thereunder, the same “ must be instituted within six months after the completion of the work specified in said contract.”

There is a wide difference between a period of limitation, specifying that it begin to run on “ the date specified for the completion of the work ” and one that begins to run from “ the completion of the work.” In the latter instance the time which puts the limitation in operation is indefinite and uncertain, depending upon the time when the work is completed; whereas, in the former instance, the time is well fixed, and the time when the work is [643]*643actually completed has no relation to the date when the limitat.'on begins to operate. In the latter instance the limitation postulates completion. (Comey v. United Surety Co., supra.) In the former there is no dependence whatever on completion of the work. At bar the bond specifies as certain a day as if it contained the definite date of May 1, 1925, beginning the period of limitation. The action not having been brought within the period, the complaint must be dismissed.

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Bluebook (online)

135 Misc. 642, 238 N.Y.S. 706, 1930 N.Y. Misc. LEXIS 939, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pezenik-v-massachusetts-bonding-insurance-nynyccityct-1930.

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