United Sur. Co. v. Meenan

• Decision Date: 14 April 1914
• Parties: UNITED SURETY CO. v. MEENAN.
• Court: New York Court of Appeals Court of Appeals

211 N.Y. 39

105 N.E. 106

UNITED SURETY CO.

v.MEENAN.

Court of Appeals of New York.

April 14, 1914.

Appeal from Supreme Court, Appellate Division, First Department.

Action by the United Surety Company against Daniel Meenan. From a judgment of the Appellate Division (151 App. Div. 942,136 N. Y. Supp. 1149), affirming a judgment for plaintiff, defendant appeals. Reversed.

June 17, 1909, the Gore-Meenan Company, of which Frank E. Gore was president, and the defendant Daniel Meenan was secretary, together with the respondent, executed a bond to Benjamin B. Odell, Jr., and William E. Paine, as receivers of the Thomas McNally Company, in the sum of $100,000, which recited that the Gore-Meenan Company had entered into a contract with said receivers, bearing date the 15th day of June, 1909, whereby said company had been employed by said receivers to construct part of the Catskill aqueduct between Garrison and Peekskill, as shown on the contract drawing for contract No. 2 between the McNally Company and the city of New York. The condition of the obligation was that the Gore-Meenan Company should faithfully perform the contract and pay bills for labor performed and materials furnished. This bond was executed by the Gore-Meenan Company by Gore as president. The first premium for six months of 1909 and six months of 1910, to wit, for one year, was paid by a check made by the Gore-Meenan Company to the order of the plaintiff for $2,500, dated June 21, 1909.

It appears by the record that on the 22d day of June, 1909, five days subsequent to the bond spoken of above, an application was made by the Gore-Meenan Company to the United Surety Company for a bond on behalf of the Gore-Meenan Company to be executed by Frank E. Gore and Daniel Meenan, as officers of said company; the amount of said bond was to be $100,000, and the nature of the contract was the same as that referred to in the bond above mentioned. Attached to said application was a statement of the assets and liabilities of the Gore-Meenan Company, which disclosed assets of $191,010, and liabilities, exclusive of capital stock, of $8,750. The application contained a covenant to pay $2,500 per annum in advance to the plaintiff for executing said bond, and with a requirement that the Gore-Meenan Company would indemnify and save harmless the United Surety Company by reason thereof. This application was executed in the name of the Gore-Meenan Company by Frank E. Gore, president.

June 23, 1909, the day following the application referred to, the instrument in suit was executed, which upon its face recites that the undersigned have requested the surety company to execute a bond or undertaking in the sum of $100,000 in behalf of the Gore-Meenan Company and in favor of the receivers for the construction of the work hereinbefore mentioned, an agreement to pay the premium of $2,500 annually on the 17th day of June of each year, and to indemnify and keep indemnified the surety company against any and all demands and liabilities, etc.

The instrument also contains the language: ‘That this agreement shall bind, not only the undersigned jointly and severally, but also our respective heirs, executors, administrators, successors and assigns (as the case may be) until the company shall have executed a release under its corporate seal, attested by the signature of its officers proper for the purpose.’ Following the date of the instrument it is signed ‘Daniel Meenan,’ the signature extending over the word ‘Seal,’ ‘P. O. Address 35 West 88 St., City,’ and ‘Frank E. Gore [Seal], P. O. Address 795 St. Nicholas Ave., City,’ and also the imprint of a seal, bearing upon its face ‘Gore-Meenan Co. New York,’ and in the center thereof ‘Incorporated 1907.’ Then follows the following acknowledgments before Philip O. Bischoff, notary public:

‘State of New York, County of New York-ss.:

‘On this 23 day of June, 1909, before me personally came Frank E. Gore, president of the Gore-Meenan Co., to me personally known and known to me to be the individual described in and who executed the foregoing agreement and he acknowledged that he executed the same. Philip O. Bischoff, Notary Public No. 82 Kings Co., N. Y. Registered N. Y. County.

‘State of New York, County of New York-ss.:

‘On the 23 day of June in the year 1909, before me personally came Daniel Meenan; to me known, who being by me duly sworn, did depose and say: That he resides in 35 West 88 St. N. Y. City; that he is the secretary of the _____ the corporation described in and which executed the foregoing instrument; that he knows the seal of said corporation; that the seal affixed to the said instrument is such corporate seal; that it was so affixed by order of the board of directors of the said corporation and that he signed his name to the said instrument by like order. Philip O. Bischoff, Notary Public No. 82 Kings Co., N. Y. Registered N. Y. County.’

This action was brought against Meenan and Gore individually, though Gore was not served in the...