Stewart v. Title Guaranty & Surety Co.

Headnote

Stewart v. Title Guaranty & Surety Co., 166 App. Div. 964 , affirmed.

Appeal from a judgment of the Appellate Division of the • Supreme Court in the fourth judicial department, entered January 13, 1915, affirming, a judgment in favor of plaintiffs entered upon the report of a referee. The complaint set forth «that on May 16, 1906, the respondents entered into ’a contract with John F. Burke & Co., wherein that firm agreed to do certain work on a.grain elevator which the respondents were under contract to construct; that to secure the due performance of the subcontract the defendant gave its bond; that Burke & Co. failed to perform; that the defendant failed to pay its bond or to "complete said contract; that the plaintiffs duly performed on their part and that the plaintiffs have sustained damages. The answer denied all the material allegations of the complaint and set up as a defense that Burke & Co. neglected to provide the material and work necessary to perform said con

tract as thereby required and failed and neglected to pay the workmen employed by them in carrying out said contract their wages as the same became due, and that the plaintiffs provided such material and work and paid such wages; that such default continued until after the time fixed for the completion of the contract; that the contract provided for completion on September 1, 1906; that it was not completed either by Burke & Co. or any one else till long afterward; that plaintiffs knew of the default aforesaid but failed to give notice to the defendant as required by the bond.