International Time Recording Co. v. Southern Surety Co.

Per Curiam. The bond set forth in the complaint provides that any one furnishing materials or rendering services to the principal may maintain an action on the bond as though named therein. Under such circumstances the plaintiff, which, it is alleged, furnished labor and materials for which it has not been paid, can maintain this action against the defendant surety company as one of the beneficiaries for whose protection the bond was required to be given. (Strong v. American Fence Construction Co., 245 N. Y. 48; Maltby & Sons v. Wade, 131 Misc. 143; affd., 224 App. Div. 779.) The complaint is insufficient, however, in faffing to allege the amount of the bond, and thereby failing to disclose whether the defendant is liable at all. The order appealed from must, therefore, be affirmed, but with leave to plaintiff to serve an amended complaint. Order affirmed, with disbursements, with leave to plaintiff to serve an amended complaint within six days after service of order entered hereon upon payment of said disbursements. All concur; present, Lydon, Frankenthaler and Untermyer, JJ.