226 A.D. 525 | N.Y. App. Div. | 1929
The plaintiff had a contract with the Board of Education of the city of New York to erect a high school. It employed the firm of A. Fiore & Son as subcontractors. The defendant gave a bond conditioned for the performance of A. Fiore & Son’s co.ntra.ct. It was conceded upon the trial that A. Fiore & Son did not complete the subcontract, and that the appellant did complete it at a cost exceeding the contract price by more than $5,000, the amount of defendant’s bond. Fiore admitted that he had defaulted in the performance of his contract, and the evidence is overwhelming that his cessation of work was due to his own default and not to that of the plaintiff. Shortly after the cessation of the work the Fiore firm went into bankruptcy. The schedules in bankruptcy contained an admission by Fiore that the appellant was a creditor for damages for breach of this contract over and above the amount of the bond. It is clear that his firm was short of funds; there was no motive for the plaintiff to exclude
The defense chiefly relied upon is that the action was not begun within the short period of limitation, six months, contained in the bond. This action was not begun within six months after A. Fiore & Son had been excluded from the work after their default. But plaintiff’s attorney testified, without substantial contradiction, that on January 2, 1925, before the expiration of the six months period, he made a written demand upon the defendant; on January fourteenth he was informed by a representative of the defendant that “ he was investigating the matter, and that he had to send for Fiore to see what he said. He said of course he could not do anything until they heard from Fiore what he had to say about it * * * that I should wait until he had a chance to get in touch with Fiore,” which the witness agreed to do. On the twenty-seventh of January the same representative of the defendant stated that he had not yet heard from Fiore, but that Fiore’s attorney claimed that they should resist liability. The witness thereupon said that the defendant “ must not take Fiore’s attorney’s word for it that 98 per cent was finished, because he was very much biased, and that he should investigate further and he said he would investigate further.” The plaintiff thereupon unsuccessfully endeavored to get some determination from the defendant, and finally on March fifth he was advised by a representative of the defendant that “ he had nothing to say, or something like that.” The summons and complaint were then immediately served upon the defendant.
On these facts the defendant must be held to have waived the clause creating the short period of limitation. (Syracuse Lighting Co. v. Maryland Casualty Co., 226 N. Y. 25, 33; Graham Brothers Aktiebolag v. St. Paul F. & M. Ins. Co., 122 Misc. 581, 585; 127 id. 403, 406; affd., 220 App. Div. 712.)
The respondent urges also that during the progress of the work the plaintiff paid to A. Fiore & Son more than the value of eighty-five per cent of the work completed, and that these overpayments constituted a modification of the contract to the prejudice of the surety and without the surety’s consent. At the outset it is to be observed that no such defense is pleaded. Moreover, the testimony of Fiore, the defendant’s witness, is replete with the charge that he was underpaid and that in consequence of such underpayment
For these reasons the order and judgment appealed from should be reversed, with costs, and judgment directed for the plaintiff for the sum of $5,000, with interest from the 2d day of January, 1925, and costs.
Dowling, P. J., Merrell, Martin and O’Malley, JJ., concur.
Judgment and order reversed, with costs, and judgment directed for the plaintiff for the sum of $5,000, with interest from January 2, 1925, and costs. Settle order on notice.