Steen v. Parker

178 A.D. 950

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 15, 1917
• Status: Published

Opinion

Order affirmed, with ten dollars costs and disbursements, with leave to the appealing defendant to plead over within twenty days upon payment of the costs of the demurrer and of this appeal. Held, that in view of the allegations of the complaint that the bonding company refuses to cancel the bond without an accounting, and the absence of the precise contract between it and the trustee respecting the bond, it cannot be held that the complaint fails to state a cause of action. It would seem that at least an accounting by the trustee is proper. All concurred, except Foote, J., who dissented upon the ground that the demurrer should be sustained because the surety bond plaintiff seeks to have canceled is a valid and subsisting contract in the hands of the Eye, Ear and Throat Hospital of which it cannot be deprived without its consent. The accounting of the trustee is asked for only as a supposed necessary prerequisite to such cancellation.