19 N.Y.2d 737 | NY | 1967
In each action: Order reversed and the judgment of the Supreme Court reinstated, with costs in this court and in the Appellate Division in a memorandum. The evidence supported the findings of the trial court, and the views of the dissenting Justices in the Appellate Division, that plaintiff and Central New York Contracting Co. engaged in a deliberate scheme to violate the trust provisions of the Lien Law. The ultimate purpose of the scheme was to foist any eventual deficit in payments to suppliers or laborers on sureties on payment bonds. On this view it is immaterial that there was no intention to defraud any particular surety or that, because of the effectiveness of the conspiracy to pool receipts from different projects, moneys could not be specifically allocated to particular jobs. Nor is any claim of carelessness by the surety available as a defense to the affirmative defense alleging fraud (Albany City Sav. Inst. v. Burdick, 87 N. Y. 39, 46-49; 24 N. Y. Jur., Fraud and Deceit, § 231).
■Concur: Chief Judge Ftjld and Judges Vah Voorhis, Burke, Scileppi, Bergah, Keat-iug and Breitel.