Gibson & Cushman, Inc. v. Grefe & Brennan, Inc. , 10 A.D.2d 724 ( 1960 )

In an action by a subcontractor to foreclose a mechanic’s lien on a public improvement and to recover a balance claimed to be due on the subcontract, the subcontractor also sought to recover said balance under a single bond furnished by the general contractor, as principal, and Fidelity & Deposit Company of Maryland, as surety, pursuant to the public improvement contract between the owner and the general contractor. The appeal is (1) from an order which granted the surety’s motion for summary judgment dismissing the complaint as to it, and (2) from the judgment entered thereon. The bond, in the penal sum of $208,500 was conditioned upon (a) the faithful performance of the public improvement free and clear of all liens thereon and all defects and deficiencies therein, and (b) the payment of all persons contracting directly with the general contractor for labor or materials. In addition, said bond contained further provisions whereby the surety affirmatively promised and agreed that if the general contractor failed or neglected to fully perform and complete the improvement, the surety would fully perform and complete the same, would commence the work of completion within 20' days of notice thereof from the owner, and would complete said improvement within 20 days of the time allowed the general contractor in its contract and specifications for the completion of said work. Order and judgment unanimously affirmed, with one 'bill of $10 costs and disbursements. No opinion. Present — Nolan, P. J., Ughetta, Christ, Pette and Brennan, J J.