Post & McCord, Inc. v. New York Municipal Railway Co.

Headnote

Replevin — action to recover bonds deposited as security for faithful performance of contract and as indemnity for liability for accidents arising from performance of work.

Post & McCord, Inc., v. New York Municipal Ry. Corpn., 187 App. Div. 167 , affirmed.

Appeal from a judgment entered April 11, 1919, upon • an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff entered upon a verdict directed by the court and directing a dismissal of the complaint. The action was in replevin, to recover the balance of certain securities deposited by the plaintiff with the defendant in lieu of bond to secure the faithful performance by the plaintiff of its contract to build an elevated railroad for the defendant. The defendant’s answer alleged that one of the conditions of the contract to be performed by the plaintiff was that it would indemnify both the defendant and the surface railway company, over whose tracks the elevated railroad was to be built, against loss from liability for accidents occurring by reason of the work; that defendant also made a contract with the surface railway company similarly indemnifying that company; that, in a collision between a trolley car and a ground derrick used by the plaintiff, one Smith, a passenger on the trolley car, was injured; that Smith recovered judgment against the surface railway company for his injuries; that the defendant, upon demand of the surface railway company and recognizing its liability to the surface railway company, reimbursed the latter for the amount paid in satisfaction of the judgment and claimed the right to have the plaintiff reimburse it for the amount so paid to the surface railway company. The answer also demanded that its lien on the plaintiff’s securities, arising out of its claim as above stated, be foreclosed. The plaintiff’s reply denied liability to reimburse the

defendant for the payment to the street surface railway company upon the grounds that the accident was occasioned by the neglect of defendant and of the surface railway.