Hocking Valley Railway Co. v. Barbour 230 N.Y. 599

The Hocking Valley Railway Company, Respondent, v. Julia A. Barbour et al., as Executors of William Barbour, Deceased, Appellants.

Indemnity bond — when complaint in action to recover upon a bond executed by defendants’ testator and agreeing to indemnify plaintiff for liability arising from its failure to perform a certain contract, states a cause of action.

Hocking Valley Ry. Co. v. Barbour, 192 App. Div. 654, affirmed.

(Argued January 12, 1921;

decided February 1, 1921.)

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 2, 1920, which affirmed an order of Special Term denying a motion by defendant for judgment on the pleadings. The complaint alleged that the plaintiff in the year 1912 owned about 2,500 gondola coal cars. It sold to the Central Locomotive and Car Works 2,100 of said cars. It was left with about 350 or 400 cars. Thereafter it sold to one Wardwell 300 of the cars which were left after the sale to the Central Locomotive and Car Works. There was a dispute between the plaintiff and Wardwell as to when the 300 cars were to be delivered, the plaintiff refusing to deliver them at the times claimed by Wardwell to be specified in the contract, and Wardwell brought an action in Illinois to recover damages for a breach of the contract. This action was brought upon the 2d day of April, 1913. Upon the 3d day of April, 1913, plaintiff made a contract to sell these cars to the Central Locomotive and Car Works and a bond was executed by the defendants’ testator indemnifying the Hocking Valley Railway Company from all damages, costs and expenses in any action so claimed by Wardwell against it for failure to deliver the 300 cars contracted to be delivered to Wardwell. Plaintiff duly notified the Central Locomotive and Car Works and William Barbour of the institution of the suits brought by Wardwell and duly paid the judgment recovered therein by Wardwell, as well as various other sums incurred in the defense of said suits, and demanded judgment for the amount thereof.

*600The following question was certified: “ Does the complaint herein, state facts sufficient to constitute a cause of action?”

John H. Corwin for appellants.

James H. Purdy, Jr., and A. Von Bernuth for respondent.