83 N.Y.S. 752 | N.Y. App. Div. | 1903
In the year 1899 the defendant Churchyard was engaged in several building operations in the vicinity of Newport, R. I., among them being three separate and distinct government contracts. One of these was with the War Department for the construction of a hospital at Fort Adams; the second was also with the War Department, and was for the construction of a fort at Dutch island, while a third was with the Navy Department for a marine barracks at Coaster’s Harbor island, and the defendant, the Fidelity and Deposit Company of Maryland, became the surety for Churchyard upon the latter contract, subject to the provisions of an act of Congress passed August 13, 1894 (28 U. S. Stat. at Large, 278, chap. 280, § 1), which provides that the surety shall assume an obligation “ that such contractor or contractors shall promptly make payments to all persons supplying him or them labor and materials • in the prosecution of the work provided for in such contract.” The real plaintiffs in this action, James McAllister, James P. McAllister, William McAllister and Daniel McAllister, were and are copartners, doing business as such in the city of New Fork, under the firm name of McAllister Bros., and on or about. October fourth they made a proposition to the defendant Churchyard to furnish him a steam lighter, the Columbia, with a crew of six men all told, and coal, water and necessary supplies to run from Newport, Fall River and Providence, for the sum of $1,800 per month. If the boat was used forty-five days, it was proposed to charge, at the rate of $55 per day, and if for sixty days, then at the rate of $50 per day, This proposition was accepted in behalf of Churchyard, and on the
The question presented by this appeal on behalf of the Fidelity •and Deposit Company is whether its obligations as a surety upon the bond of Churchyard for the construction of marine barracks at Coaster’s Harbor island extend to the general contract between the plaintiffs and Churchyard for the use of the former’s lighter in connection with the transportation of lumber and materials to the three works which Churchyard.had under- construction at the time? Does the statute, and the contract made' in pursuance of the provisions of the law, contemplate such a liability ? The contract of a surety is to be strictly limited to the provisions of the contract, and we see no reason why this rule should be enlarged in the case of a surety required by the statute, which in this case guarantees that the contractor or contractors “ shall promptly make payments to all persons supplying him or them labor and materials in the prosecution of the work provided for in such contract.” The plaintiffs in furnishing a boat to transport materials to the works at Coaster’s Harbor island have not furnished any material used in the prosecution of the work provided for in the contract, any more than a common carrier might be said to furnish materials by transporting them to the point where they were to be used.. Churchyard might have hired the plaintiffs to transport his materials as freight, and it would hardly have been suggested that under the statute the plaintiffs would have had a lien for materials furnished in performing the contract, and we are unable to discover any reason why they have a stronger claim because Churchyard choose to hire the means
The judgment and order appealed from should be reversed.
Hirschberg, Jerks and Hooker, JJ., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.