234 A.D. 521 | N.Y. App. Div. | 1932
The bond in suit, as well as the statute (Education Law, § 875, subd. 8, as added by Laws of 1917, chap. 786) under the authority of which it was required to be given, has as its dominant purpose the security of the promisee. The security of those furnishing labor or material to the contractor in whose welfare the promisee as a State agency is interested, is a subservient purpose. Under the language of the bond, there can be no doubt of an intention to create, within limits, a cause of action in favor of such third parties. Before such cause of action in their favor can arise, the dominant purpose must have been fulfilled. Its fulfillment is in the nature of a condition precedent, which must be pleaded as part of the cause of action. In that respect the complaint here is insufficient.
The order appealed from should be reversed on the law, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs, with leave to the plaintiff to serve an amended complaint within ten days.
All concur. Present — Seaes, P. J., Ceotjch, Edgcomb, Thompson and Cbosby, JJ.
Order reversed on the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to the plaintiff to serve an amended complaint within ten days upon payment of the costs of the motion and of this appeal.