William L. Crow Construction Co. v. Carroll P. Brennan, Inc.

Headnote

Surety bonds — limitation as to time within which action on bond must be brought — disclaimer of liability not a waiver of limitation provision.

Crow Construction Co. v. Brennan, Inc., 196 App. Div. 71 , affirmed.

Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 5, 1921, reversing a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury and granting a new trial. The action was upon an undertaking given by the appellant, the London and Lancashire Indemnity Company, to indemnify the plaintiff for the failure of the defendant, Carroll P.

Brennan, Inc., to perform its contract as general contractor in constructing a school building in the town of Hackensack. The undertaking upon which suit was brought was made upon the 3d day of March, 1917, and it was therein provided that no claim or action should be brought against the appellant after the 3d day of March, 1918. Brennan, Inc., having repudiated the contract, claim was made against the defendant indemnity company, and it wrote a letter disclaiming liability. Plaintiff contended that this disclaimer of liability constituted-a breach of the contract on the part of the indemnity company, so that the plaintiff was not bound by any of its terms and, therefore, was relieved -from bringing the action before the 3d day of March, 1918, as provided in the contract.