Opinion
September 26, 1952.
Action against principal for breach of contract and against surety on contractor's performance bond. On defendants' motion to dismiss complaint or for alternative relief, the Supreme Court, Special Term, Bailey, J., held that complaint failed to state a cause of action against either contractor or surety on performance bond.
Complaint dismissed with leave to plead anew.
Orville C. Sanborn, Harrison, for plaintiffs.
Tachna, Pinkussohn Bauman, New York City, for defendants.
1. Principal and Surety 157
Condition in contractor's performance bond, providing that no action should be maintained thereon unless brought within specified time, was a condition precedent to action on bond, compliance with which must be alleged and proved by plaintiff.
2. Principal and Surety 155
Complaint failed to state a cause of action against surety on contractor's performance bond in absence of allegation that action against surety had been instituted within time specified in bond. Rules of Civil Practice, rule 106.
3. Contracts 888(1), 387(1)
Complaint failed to state a cause of action for breach of contract, in absence of allegation of sufficient facts to demonstrate either existence or breach of contract. Rules of Civil Practice, rule 106.
Defendants move under Rule 106, Rules of Civil Practice, to dismiss the complaint or for alternative relief.
Upon the return of the motion herein it was suggested by counsel that the entire controversy might be adjusted if a conference were held. Thereupon the court conferred at length with counsel and representatives of the parties to the litigation as a result of which it was requested that decision upon the instant motion be deferred. Subsequently after a considerable lapse of time counsel again waited upon the court and a further conference was held and at the conclusion counsel again requested that this application be held in abeyance pending discussions with their respective clients.
The court has now been informed that the efforts to dispose of the litigation have been futile whereupon it becomes necessary to consider the matter as submitted.
Plaintiffs attempted to plead causes of action against a principal for breach of contract and against the surety on a performance bond.
[1, 2] The complaint fails to allege that the action against the surety has been instituted within six months after the principal ceased performing the work. Such requirement is a condition precedent to action and compliance must be alleged and proved by plaintiff. Town of Potsdam v. Aetna Casualty Surety Co., 218 App.Div. 27, 217 N.Y.S. 641. The complaint therefore fails to state a cause of action against the surety on the bond.
As to the cause of action against defendant Canterbury Homes, Inc., for breach of contract, the complaint fails to allege sufficient facts to demonstrate either the existence or breach of a contract.
Plaintiff, Bradner, has no cause of action against defendant Canterbury Homes, Inc. by reason of the aforesaid failure to allege a contract and has no rights against the surety because the bond specifically limits the surety's liability to the Town of Harrison.
Under the circumstances the complaint is dismissed with leave to plead anew within twenty days if so advised.
Submit order accordingly.