E. W. Edwards & Son v. City of Buffalo

Order reversed, with ten dollars' costs and disbursements and motion denied, without costs. Memorandum: The city claims that the Western Union Telegraph Co. is liable to it by reason of its agreement contained in the bond filed by it, even though such company was not negligent in its construction work. The city relies upon the matter stricken out from its answer to support this claim. It should not be deprived of the right! to assert such claim upon the trial. (Toth v. City of New York, 259 App. Div. 855; affd., 285 N. Y. 579.) All concur. (The order grants a motion by defendant Telegraph Company to strike out parts of the answer of defendant city which alleges a cross-action against the Telegraph Company, in an action to recover damages resulting by reason of the breaking of a water main.) Present — Crosby, P. J., Cunningham, Taylor, Dowling and Harris, JJ.