The City of New Rochelle, Respondent, v. Jacob Cortright, Defendant, Impleaded with The Ætna Indemnity Company, Appellant

The City of New Rochelle, Respondent, v. Jacob Cortright, Defendant, Impleaded with The Ætna Indemnity Company, Appellant. Second Department, March 5, 1909. Contract—assignment of sums to become due under municipal contract — when obligations of surety not altered. Where a municipal contract provides that sums payable thereunder are not assignable except with the consent of the city, a surety of the contractor, who has failed to complete the work after abandonment by the contractor after notice to do so, cannot escape liability for sums expended by the city in completing the work on the theory that there was a substantial change in the contract beóause moneys to become due thereunder were assigned with the consent of the city. It seems, that even though there were no provision prohibiting an assignment, the contract itself and the surety’s right of subrogation to complete the same would not be changed because the city consented to pay to the contractor’s assignee. Appeal b.y the defendant, The .¿Etna Indemnity Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 31st day of July, 1908, upon the verdict of a jury, rendered by direction of the court, and also from an order entered in said' clerk’s office on the 18th day of July, 1908, denying the said defendant’s motion for a new trial made upon the minutes. The action ivas, on a surety bond given by the defendant for the performance of a contract by one Cortright with the plaintiff to build water drains. The contract contained a clause that the contractor should not assign “ any of the moneys payable under this agreement ” unless with the consent of the city. By written instrument the contractor assigned to another “ all moneys due, owing, or. to become due to the said party of the first part ”, i. e., the contractor, and the city by resolution of its common council consented thereto. The contractor abandoned the work and the plaintiff completed, the defendant failing to do so on notice. A defence was pleaded that such an assignment was made with the plaintiff’s consent and that it was a substantial change of the contract, and therefore released the surety. Carlisle Norwood, for the appellant. Michael J. Tierney, for the respondent. [MAJORITY — Gaynor, J.:] Gaynor, J.: The assignment of the moneys due and to grow due to the contractor on the contract, to which the plaintiff consented, was not an alteration of the contract by the parties. On the contrary, the contract provided that that might be done. Even if there had,been no such provision in the contract, it is not intimated here that siich assignment could in any way interfere with or impair the surety’s right of subrogation to complete the contract and be paid according-to its terms on the contractor’s default. It would have to be considered' whether an assent of the city to pay the money as it came due to the contractor’s nominee or assignee would be any change of the contract at all. The judgment should be affirmed. Hirschberg, P. J., Woodward, Jenks and Burr, JJ., concurred. Judgment and order affirmed, with costs.