Schwartz & Co. v. Aimwell Co.
| Decision Date | 24 October 1919 |
| Citation | 124 N.E. 892,227 N.Y. 184 |
| Parties | SCHWARTZ & CO., Inc., v. AIMWELL CO., Inc., et al. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, First Department.
Action by Schwartz & Co., Incorporated, against the Aimwell Company, Incorporated, and the National Surety Company. From an order of the Special Term, overruling demurrers to the complaint as not stating facts sufficient to constitute a cause of action, defendants appealed to the Appellate Division which affirmed (--App. Div.--, 175 N. Y. Supp. 921), and defendants appeal by permission; a question being certified. Orders of the Appellate Division and Special Term reversed, and demurrers sustained, with leave to plaintiff to serve an amended complaint.
Horace G. Marks, of New York City, for appellant Aimwell Co.
Otto A. Samuels, of New York City, for appellant National Surety Co.
Abraham H. Sarasohn, of New York City, for respondent.
The plaintiff, as the assignee of D. A. Schulte, Incorporated, brings this action to recover the penalty of a bond executed and delivered to it by the defendant Aimwell Company, Incorporated, as principal, and National Surety Company as surety. The bond is not annexed to or made a part of the complaint, but its essential features are therein set forth. The recitals in the bond are that the aforesaid principal is about to make certain alterations and improvements in the premises at the southeast corner of Main and Elm streets in the city of Bridgeport, Comm., which are occupied under a lease from D. A. Schulte, Incorporated, and has requested it to consent that such changes be made; that such consent is given on condition that: (a) Aimwell Company, Incorporated, will pay, satisfy and discharge all claims of builders, mechanics, materialmen, etc., who shall furnish materials or perform work in making such changes; (b) perform the work according to certain plans and specifications; and (c) complete the work by October 15, 1917; that, if such conditions be complied with, then the obligation will be of no effect; otherwise, to be in full force. The complaint then alleges that the Aimwell Company, Incorporated, did not perform one of the conditions specified in the bond, in that it failed and neglected to pay builders, mechanics, and materialmen, and others, who performed work and furnished materials to the amount and reasonable value of $8,000, for which sum judgment was demanded. The defendants separately demurred to the complaint, upon the ground that it did not state facts sufficient to constitute a cause of action. The demurrers were overruled. An appeal was then taken by each defendant to the Appellate Division, where the judgment was affirmed, and, by permission, they now appeal to this court.
There is no allegation in the complaint, nor any allegation from which such fact can be inferred, that D. A. Schulte, Incorporated, has or will sustain any damage whatever by reason of the failure and neglect of the Aimwell Company, Incorporated, to pay and discharge such claims. Nor are there any allegations to...
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...is under no obligation to pay the materialmen and they cannot obtain a lien on his property. That was the case in Schwartz & Co. v. Aimwell Co., 227 N.Y. 184, 187, 124 N.E. 892, where this court said: ‘It has not paid any of them and is not personally liable for their payment. As indicated,......
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