146 N.Y.S. 996 | N.Y. App. Div. | 1914
This case was submitted on March 5, 1914, without oral argument. The action was brought to recover on a surety bond. It was tried in Kings county on February 10,1910. The complaint was dismissed at the close of the plaintiffs’ proofs. Judgment of dismissal was entered on February 16, 1910, notice of appeal filed March 16, 1910, the appeal papers perfected on April 1,1910, and case ordered filed on May 13,1910. It comes now before us for consideration for the first time four years after the appeal was taken, and is then submitted without oral argument. The bond on which the action was brought is set forth in the record in ipsissimis verbis. This bond was given to secure the plaintiffs against damage on a written contract, forming a part of the bond, between the Nichols & Langworthy Machine Company and the plaintiffs. The proofs taken were very short, and consisted of the testimony of but one witness, one of the plaintiffs. The defendant rested upon its cross-examination of this witness to establish its defense. In dismissing the complaint the trial court rendered no opinion, oral or otherwise. The defense was fraud arising out of fraudulent concealment of material facts when the plaintiffs accepted the bond in question from the defendant. The plaintiffs, prior to - the acceptance of the bond, had no direct dealings with the defendant. It was the machine company that applied for the bond. The machine company was not the agent of the plaintiffs, and they are not bound by any fraudulent representations in which they did not participate or which were made without their knowledge. (Western N. Y. Life Ins. Co. v. Clinton, 66 N. Y. 326; Ludekens v. Pscherhofer, 76 Hun, 548; Howe Machine Co. v. Farrington, 82 N. Y. 121; Powers v. Clarke, 127 id. 417.) At the same time, it is well recognized that the obligee before accepting the bond of the surety is called upon to make such disclosures of facts within his knowledge, of which the concealment would amount to a suppressio veri and thereby become fraudulent, and it is
The judgment is affirmed, with costs.
Jenks, P. J., Thomas and Putnam, JJ., concurred; Burr, J., taking no part.
Judgment affirmed, with costs.