Victory Contracting Corp. v. Trotta 230 N.Y. 562

Victory Contracting Corporation, Respondent, v. Pasquale Trotta, Defendant, and Maryland Casualty Company, Appellant.

Surety bonds — limitation of time to commence action — contention that clause did not .contemplate abandonment of work, the faithful performance of which was guaranteed.

Victory Contracting Corporation v. Trotta, 187 App. Div. 898, affirmed.

(Argued November 19, 1920;

decided December 7, 1920.)

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered January 17, 1919, unanimously affirming a judgment in favor of plaintiff entered upon a verdict directed by the court. Defendant Trotta contracted to do certain excavating for plaintiff and furnished *563a bond executed by defendant, appellant, to insure faithful performance. Trotta having abandoned the contract, plaintiff completed the work and brought this action to recover the expense thereof. The answer set up as a separate defense that the action was not commenced within the time limited in the bond. Plaintiff contended that the limitation clause did not contemplate an abandonment of the work by the contractor.

Ralph Polk Buell, Edward Ward McMahon and Edward J. Dowling for appellant.

Abraham H. Goodman and Nathaniel Kopf for respondent.