Opinion
October 24, 1949.
In an action by a subcontractor against an owner, defendant appeals from an order denying its motion to dismiss the first and second causes of action of the complaint on the ground that they do not state causes of action. The first cause of action is to recover damages for misrepresentation based on an alleged false representation by the defendant to plaintiff that it had procured and held a bond or bonds, in accordance with the contract between the general contractor and the defendant, for the payment by the general contractor of all its obligations to the owner and to its subcontractors, upon which misrepresentations plaintiff relied and furnished labor and materials. The second cause of action is to recover damages for alleged negligent failure to procure a bond from the general contractor for the payment by the general contractor of all its obligations to subcontractors, in accordance with the contract between the general contractor and the defendant, to which plaintiff was not a party, but which contract is alleged to have been publicized for the benefit of the plaintiff as one of the persons requested by the general contractor, with the approval of the defendant, to accept employment from the general contractor. Order modified on the law by striking therefrom the ordering paragraphs and substituting therefor: "Ordered that the motion be granted as to the second cause of action and denied as to the first cause of action." As so modified, the order is affirmed, with $10 costs and disbursements to appellant. Defendant may answer within ten days from the entry of the order hereon. The allegations of the first cause of action are sufficient on which to find fraudulent misrepresentations by defendant to plaintiff. ( Ultramares Corp. v. Touche, 255 N.Y. 170.) The first cause of action can be read to mean that defendant represented there was a bond or bonds which specifically guaranteed to plaintiff payment for its labor and materials, and that plaintiff, solely in reliance on that representation, supplied labor and materials. The second cause of action contains no allegations from which it can be held that defendant owed plaintiff any statutory or contractual duty to insist on a bond guaranteeing plaintiff payment for work and materials, or to inspect the bond which was furnished by the general contractor. ( Ultramares Corp. v. Touche, supra.) Johnston, Acting P.J., Adel, Sneed, Wenzel and MacCrate, JJ., concur.