ANIXTER INC v. Contractors Casualty and Surety Company, Defendant–Appellant.

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Supreme Court, Appellate Division, First Department, New York.

ANIXTER, INC., etc., Plaintiff–Respondent, v. I.E.A. ELECTRIC GROUP, INC., Defendant, Contractors Casualty and Surety Company, Defendant–Appellant.

Decided: July 22, 1999

SULLIVAN, J.P., WILLIAMS, RUBIN, ANDRIAS and FRIEDMAN, JJ. Robert W. Slott, for Plaintiff–Respondent. Michael G. Lewis, for Defendant–Appellant.

Judgment, Supreme Court, New York County (Edward Lehner, J.), entered February 9, 1998, in favor of plaintiffs and against defendants in the total amount of $89,173.98, and bringing up for review an order, entered October 2, 1997, which, in an action by a supplier against a contractor for goods sold and delivered and against the contractor's surety on a payment bond, insofar as appealed from as limited by the briefs, granted plaintiff's motion for summary judgment against defendant-appellant surety, unanimously affirmed, with costs.   Appeal from the order, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Summary judgment was properly granted on the subject payment bond, which is enforceable against defendant surety even though it may not have been signed by defendant contractor (see, O'Hanlon v. Scott, 35 N.Y.S. 31, 89 Hun 44;  Mayor v. Kent, 5 N.Y.S. 567;  Williams v. Marshall, 42 Barb 524;  see also, 11 N.Y. Jur. 2d, Bonds, § 30).   We have considered and rejected defendant-appellant's other contentions.

MEMORANDUM DECISION.