Clearview Gardens First Corp. v. Little Bay Const. Corp.

• Decision Date: 31 March 1958
• Citation: 172 N.Y.S.2d 693,5 A.D.2d 889
• Parties: CLEARVIEW GARDENS FIRST CORPORATION, Clearview Gardens Second Corporation, Clearview Gardens Third Corporation, Clearview Gardens Fourth Corporation, Clearview Gardens Fifth Corporation and Clearview Gardens Sixth Corporation, respondents, v. LITTLE BAY CONSTRUCTION CORPORATION, defendant, and Samuel Praver, Regina Praver, William Praver, Morris Praver, Hilda Praver, Arnold Praver, Pearl Praver, Philip Praver, Nettie Praver, Louis Kahn, Helen G. Kahn, Efrem A. Kahn, Marion Kahn, Massachusetts Bonding and Insurance Company and Manufacturers Casualty Insurance Company, appellants. LITTLE BAY CONSTRUCTION CORPORATION, third-party plaintiff, v. MASTER CONTRACTING CORP. and others, third-party defendants.
• Court: New York Supreme Court — Appellate Division

Page 693

172 N.Y.S.2d 693

5 A.D.2d 889

CLEARVIEW GARDENS FIRST CORPORATION, Clearview Gardens

Second Corporation, Clearview Gardens Third Corporation,

Clearview Gardens Fourth Corporation, Clearview Gardens

Fifth Corporation and Clearview Gardens Sixth Corporation, respondents, v. LITTLE BAY CONSTRUCTION CORPORATION, defendant, and Samuel

Praver, Regina Praver, William Praver, Morris Praver, Hilda

Praver, Arnold Praver, Pearl Praver, Philip Praver, Nettie

Praver, Louis Kahn, Helen G. Kahn, Efrem A. Kahn, Marion

Kahn, Massachusetts Bonding and Insurance Company and

Manufacturers Casualty Insurance Company, appellants.

LITTLE BAY CONSTRUCTION CORPORATION, third-party plaintiff, v. MASTER CONTRACTING CORP. and others, third-party defendants.

Supreme Court, Appellate Division, Second Department.

March 31, 1958.

Edward S. Bentley, New York City, for appellants.

Seymour Howard, New York City, for respondents.

Before NOLAN, P. J., and WENZEL, BELDOCK, UGHETTA and KLEINFELD, JJ.

MEMORANDUM BY THE COURT.

Appeal by individual sureties upon indemnity agreements conditioned upon the performance by defendant Little Bay Construction Corporation, as principal, of certain agreements with respondents for the construction of apartment buildings, and by two corporate sureties upon bonds given to respondents by defendant Little Bay, as principal, conditioned upon the performance of certain completion agreements, from three orders denying leave to said appellants to serve supplemental answers, and for summary judgment dismissing the amended complaint, or, in the alternative, to stay the proceeding herein pending arbitration.

Orders modified by striking from subdivision (1) of the ordering paragraph in each order the word 'denied' and by substituting therefor the word 'granted', and (2) by striking from subdivision (2) of each said ordering paragraph everything following the word 'is' and by substituting therefor the word 'denied'. As so modified, orders affirmed, without costs. It has been established by a prior decision of this court that defendant Little Bay waived the right to arbitration originally provided for in the construction contracts (Clearview Gardens First Corp. v. Little Bay Const. Corp., 4 A.D.2d 875, 166 N.Y.S.2d 841). The bonds of the corporate sureties, however, expressly limited liability to that set forth in the completion agreements therein recited, which contained no arbitration provisions. Upon this record we are unable to determine whether...