10 A.D.2d 872 | N.Y. App. Div. | 1960
In an action to recover on a surety bond, the appeal is (1) from an order entered July 13, 1959, denying appellants’ motion for leave to serve an amended answer, (2) from an order entered July 28, 1959, granting a motion for summary judgment striking out appellants’ answer, and (3) 'from a judgment entered on the latter order. Appellants sought to avoid the surety bond executed by them because of respondent’s alleged fraudulent concealment and misrepresentation of material facts. Orders and judgment unanimously affirmed, with one bill of $10 costs and disbursements. We can see nothing in the record here presented which lends any support to appellants’ claim that the respondent was guilty of fraudulent concealment and misrepresentation, nor any circumstances inconsistent with a bona fide transaction (cf. Conlew, Inc. v. Uhler, 239 App. Div. 380, and cases therein cited). Furthermore, it would be contrary to public policy to allow the protection afforded by surety bonds of this character to be endangered by charges of fraud and bad faith without a clear and sufficient averment of facts, for it would render such bonds “ a very precarious security to the parties who take them ” (Bostwick v. Van Voorhis, 91 N. Y. 353, 361; Howe Mach. Co. v. Farrington, 82 N. Y. 121, 127; Western New York Life Ins. Co. v. Clinton, 66 N. Y. 326, 331). Present — Beldock, Acting P. J., Ughetta, Christ, Pette and Brennan, JJ. [21 Misc 2d 158.]