Harry M. Lasker, Inc. v. National Surety Co.

Headnote

Principal and surety — bonds — action to recover upon indemnity bond — motion for judgment upon ground that complaint failed to allege facts coming within coverage of bond.

Lasker v. National Surety Co. (2 cases), 212 App. Div. 511 , 514, affirmed.

Appeal, in each of the above-entitled actions, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 10, 1925, unanimously affirming a judgment in favor of defendant entered upon an order of Special Term granting a motion by defendant for judgment on the pleadings. The actions were brought to recover upon an indemnity bond whereby the defendant agreed to protect the obligee in the purchase of notes secured by a hen upon a motor vehicle, from loss which said obligee might sustain through conversion of, or defective title to, such motor vehicle. Defendant moved for judgment on the pleadings upon the ground that by the terms of the bond it applied only where such motor vehicle had actually been delivered to the maker of the notes, and he had paid at least twenty-five per cent of its sale value at the time of delivery, and that the complaint, as limited by the bill of particulars, showed that no vehicle was delivered to the supposed maker of the' so-called notes and conditional sale contracts purchased by plaintiff; that no payment on account of the vehicle

mentioned or referred to in said papers was made by the supposed maker thereof; and, therefore, that plaintiff had failed to allege a state of facts coming within the coverage of the bond in suit.