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City of New Rochelle v. Ætna Indemnity Co.

115 N.Y.S. 135 Court N.Y. App. Div. Decision date 1909-03-05 English

Delivered by GAYNOR, J.

Contents

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p. 135
CITY OF NEW ROCHELLE v. ÆTNA INDEMNITY CO.
(Supreme Court, Appellate Division, Second Department.
March 5, 1909.)

Headnote

Municipal Corporations (§ 347[1] ) — Improvements — Contractors’ Bonds — Discharge of Surety—Alteration of Construction Contract—Assignment of Compensation.
Where a drain contract forbids the assignment by the contractor of any money due him thereunder, except with the city’s consent, the subsequent assignment of the money due the contractor with the consent of the city council was not an alteration of the contract, so as to release the contractor’s surety for the performance of the work from its obligation to complete the work after the contractor had abandoned it.
[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 8?6; Dec. Dig. § 347.*]
Appeal from Trial Term, Westchester County.
Action by the City of New Rochelle against the. .¿Etna Indemnity Company. From a judgment for plaintiff, defendant appeals. Affirmed.
p. 136
The action was on a surety bond given by the defendant for the performance of a contract by one Oortright with the plaintiff to build water drains. The contract contained a clause that the contractor should not assign “any of the moneys payable under this agreement” unless with the consent of the city. By written instrument the contractor assigned to another “all moneys due, owing, or to become due to the-said party of the first part,” i. e., the contractor, and the city by resolution of its common council consented thereto. The contractor abandoned the work and the plaintiff completed, the defendant failing to do so on notice. A defense was pleaded that such an. assignment was made with the plaintiff’s consent and that it was a substantial change of the contract, and therefore released the surety.
Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, GAYNOR, and BURR, JJ.
Carlisle Norwood, for appellant.
Michael J. Tierney, for respondent.

The assignment of the moneys due and to grow due to the contractor on the contract, to which the plaintiff consented, was not an alteration oí the contract by the parties. On the contrary, the contract provided that that might be done. Even if there had been no such provision in the contract; it is not intimated here that such assignment could in any way interfere with or impair the surety’s right of subrogation to complete the contract and be paid according to its terms on the contractor’s default. It would have to be' considered whether an assent of the city to pay the money as it came due to the contract- or’s nominee or assignee would be any change of the contract at all.

The judgment should be affirmed.

Judgment and order affirmed, with costs. All concur.