Clark Plastering Co. v. Seaboard Sur. Co.

• Decision Date: 19 July 1932
• Citation: 182 N.E. 71,259 N.Y. 424
• Parties: CLARK PLASTERING CO. v. SEABOARD SURETY CO.
• Court: New York Court of Appeals Court of Appeals

259 N.Y. 424

182 N.E. 71

CLARK PLASTERING CO.

v.SEABOARD SURETY CO.

Court of Appeals of New York.

July 19, 1932.

Action by the Clark Plastering Company against the Seaboard Surety Company. From a judgment of the Appellate Division (235 App. Div. 444, 257 N. Y. S. 375) which reversed an order of the Special Term denying a motion to dismiss the complaint and granted the motion, and from an order of the Appellate Division (235 App. Div. 449, 257 N. Y. S. 469) which dismissed an appeal from an order of the Special Term denying a motion to strike out a separate defense contained in the answer, plaintiff appeals.

On the first appeal, judgment of the Appellate Division reversed, and order of the Special Term affirmed. Appeal from the order of the Appellate Division on the second appeal dismissed.

Appeal from Supreme Court, Appellate Division, First Department.

Gustave B. Garfield and Maurice V. Seligson, both of New York City, for appellant.

Thomas Kiernan, of New York City, for respondent.

KELLOGG, J.

The complaint alleges that plaintiff is a foreign corporation; that it was at all times licensed to do business in the state of New York; that the defendant is a domestic corporation; that the defendant, in November, 1929, executed and delivered to the board of education of the city of Linden, N. J., its undertaking, a copy of which, marked ‘Exhibit A,’ is attached to the complaint; that the plaintiff in February, 1930, entered into a contract with Walter A. Jensen, who had a contract with the aforesaid board of education for the erection of a school building; that the contract provided that the plaintiff would furnish all the material and perform all the labor necessary to complete the interior plastering, metal furring, and lathing required in the erection of said building, for the sum of $19,750; that plaintiff fully performed his contract; that there remains a balance owing from Jensen of $1,546.02; that the defendant, by its undertaking given to the board of education, as aforesaid, among other things undertook that Jensen would ‘pay all lawful claims of sub-contractors, material men and laborers' in connection with the erection of the school building; that it further agreed that ‘this bond shall be for the benefit of any sub-contractor, any material men or laborers having a just claim’; that by reason of these facts the defendant was indebted to the plaintiff in the sum of $1,546.02, which sum had not been paid, although demanded. A motion was made, under rules 106 and 107 of the Rules of Civil Practice, to dismiss the complaint. The motion was noticed prior to the service of the answer, and was based upon the complaint and an affidavit of Harold W. Rudolph. The affidavit set up that the undertaking given was a bond required to be given by the statutes of New Jersey in like cases; that these statutes provided that any person performing labor or providing material, in order to secure the advantages of the bond, must furnish to the sureties thereon, within eighty days after the acceptance of the work by the municipality, a statement of the amount due to such person; that the plaintiff had not furnished the defendant with such a statement within the time limited. An answering affidavit denied that the undertaking given was the statutory bond; that, even if it were, the plaintiff had sent the required notice to the defendant within the time limited. It appears from the order denying the motion that the only papers read upon the motion were the complaint and these affidavits. On appeal the order was reversed and the complaint dismissed.

[1] Rule 106 provides for a motion to dismiss a complaint, where it appears on the face of the complaint: (1) That the court has not jurisdiction of the person; (2) that it has not jurisdiction of the subject-matter; (3) that the plaintiff has not legal capacity to sue; (4) that there is...