Guidone & Galardi Co. v. Caggiano

Headnote

Guidone & Galardi Co. v. Caggiano, 157 App. Div. 935 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 27, 1913, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at

Special Term in an action to foreclose a mortgage given as security for the performance of a contract. The complaint alleged the execution and delivery of the original contract, bond and mortgage, the assignment of the contract to the R. Scocca Plaster and Ornamental Construction Company after certain payments had been made; that the appellant Caggiano had given his written consent to such assignment, and had expressly consented in writing that the respondent might at its option advance the amounts of any and all payrolls and material hills ‘ ‘ theretofore or thereafter incurred * * * in the execution or completion of said contract; ” that thereafter the assignee completed the work covered by the contract, and that the respondent paid out for material and labor in accordance with said contract of indemnity the sum of $1,678.99 in excess of the contract price. The answer admitted the completion of the contract by the assignee, admitted the making of the “ contract of indemnity ” by the appellant, and generally denied the other allegations of the complaint, setting up an affirmative defense of lack of consideration for the execution of the bond and mortgage and the contract of indemnity.