Wilson v. Moon

• Citation: 265 N.Y. 640,193 N.E. 423
• Parties: Elmer E. WILSON, Respondent, v. Le Vell MOON, Doing Business under the Name of John Moon & Son, et al., Defendants, Clarence Sand and Gravel Co., Inc., et al., Respondents, and Columbia Casualty Company, Appellant. BLOOMINGTON LIMESTONE COMPANY, Respondent, v. BOARD OF EDUCATION OF THE CITY OF LOCKPORT et al., Respondents, and Columbia Casualty Company, Appellant, Impleaded with Others.
• Decision Date: 20 November 1934
• Court: New York Court of Appeals

265 N.Y. 640

193 N.E. 423

Elmer E. WILSON, Respondent,

v.Le Vell MOON, Doing Business under the Name of John Moon & Son, et al., Defendants, Clarence Sand and Gravel Co., Inc., et al., Respondents, and Columbia Casualty Company, Appellant.

BLOOMINGTON LIMESTONE COMPANY, Respondent,

v.BOARD OF EDUCATION OF THE CITY OF LOCKPORT et al., Respondents, and Columbia Casualty Company, Appellant, Impleaded with Others.

Court of Appeals of New York.

Nov. 20, 1934.

Appeal, in the first above-entitled action, from a judgment of the Appellate Division of the Supreme Court in the Fourth Judicial Department (240 App. Div. 440, 270 N. Y. S. 859), entered April 26, 1934, modifying and affirming as modified, upon new findings, a judgment in favor of plaintiff against the defendants Le Vell Moon and Columbia Casualty Company, and in favor of certain defendants against other defendants, entered upon the report of a referee.

Appeal, in the second above entitled action, by permission, from a judgment of the same Appellate Division, entered April 12, 1934, affirming a judgment in favor of plaintiff against the defendants Columbia Casualty Company and Lloyds Casualty Company, entered upon the report of a referee.

The two actions were brought to foreclose mechanics' liens for materials furnished for the construction of two public schools in the city of Lockport. The defendant board of education, on June 15, 1929, entered into a contract with the defendant Moon for the construction of these buildings. The defendant Columbia Casualty Company was surety upon a bond furnished by Moon for the faithful performance of this contract. In April, 1930, Moon defaulted on this contract, and thereafter did no work thereunder. On April 16, 1930, the board of education notified him that he had failed to perform the contract, and on April 25, 1930, entered into an agreement with the defendant casualty company for the completion of the building; and they were completed under this agreement. The Appellate Division, among other things, held that the contract with Moon had not been terminated, so that the retained percentage moneys and other moneys not actually earned and due when he defaulted could not be paid to his creditors, but, on the contrary, that the casualty company, in completing the contract of its principal, Moon, stood in his shoes, that all moneys earned by the casualty company in thus completing the buildings were as applicable to claims of laborers and materialmen who had acted under contracts with Moon as though the money had been earned by Moon himself, and that whether...