William J. Mccormack Sand Co. v. Edward D. W. Milligan, Inc.

253 A.D. 743, 300 N.Y.S. 789, 1937 N.Y. App. Div. LEXIS 5428

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 17, 1937
• Status: Published

Opinion

In an action brought by a subcontractor (1) to foreclose a mechanic’s lien for materials which became part of the construction of a public improvement, and (2) to recover from the contractor and its corporate surety, upon a bond given to the Triborough Bridge Authority, the amount due to the subcontractor from the contractor, order dismissing the complaint as against defendant Standard Accident Insurance Company, and severing the action, and judgment thereon entered unanimously affirmed, with ten dollars costs and disbursements. The plaintiff-appellant has no right of action upon the bond in suit. The same runs only to the Triborough Bridge Authority and is solely for its protection. (Fosmire v. National Surety Co., 229 N. Y. 44, and Van Clief & Sons, Inc., v. City of New York, 141 Misc. 216, and eases therein cited. See, also, Johnson Service Co. v. Monin, Inc., 253 N. Y. 417.) Further, no statute permits recovery by the plaintiff-appellant upon such bond. Present — Hagarty, Davis, Johnston, Taylor and Close, JJ.