Board of Education of Union Free School District No. 3 v. Maryland Casualty Co.

Majority

p. 936

Board of Education of Union Free School District No. 3 of the Town of Cheektowaga, Appellant, v. Maryland Casualty Company et al., Respondents.

-Judgment reversed on the law and facts, with costs, and judgment directed in favor of the plaintiff against defendants for the sum of $1,498.90, with costs, and judgment in the sum of $1,498.90 directed in favor of the defendant Maryland Casualty Co. on its cross complaint against defendants Schauf and Troust. Certain finding of fact disapproved and reversed and new findings of fact made. Memorandum: In our opinion the learned Official Referee erred in dismissing the plaintiff’s complaint on the merits. We think that the evidence adduced upon the trial conclusively establishes the liability of defendants upon the bid bond. The bid proposal was duly accepted by the plaintiff and the bidders given the written notice thereof as specified in the bid proposal. The bid was not withdrawn before acceptance. The defendants

p. 937

Sehauf and Troust failed to execute the performance contract and furnish a performance bond in accordance with the conditions of the bid bond in suit. The amount of plaintiff’s recovery, however, is limited by the stipulation requiring a deposit with the bid proposal of a bond in the penal sum of 5% or the amount bid, viz.: $1,498.90. All concur. (The judgment appealed from dismisses the complaint in an action under a surety bond.) Present — Taylor, P. J., MeCum, Love, Vaughan and Kimball, JJ.