DARLING v. CITY OF NIAGARA FALLS, INT’L FIDELITY INS., 49 N.Y.2d 855 (1980)

427 N.Y.S.2d 791, 404 N.E.2d 1332

HERBERT F. DARLING, INC., Appellant, v. CITY OF NIAGARA FALLS, Appellant, and INTERNATIONAL FIDELITY INSURANCE COMPANY, Respondent, et al., Defendants.

Court of Appeals of the State of New York.Argued February 13, 1980
Decided March 20, 1980

Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, JAMES B. KANE, J.

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Angelo Massaro for plaintiff-appellant.

Carl E. Mooradian, Corporation Counsel (Bernard Sax of counsel), for defendant-appellant.

Howard L. Meyer and Ralph Cessario for respondent.

MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs.

International Fidelity Insurance Company was surety for Payload Construction on its contract with the City of Niagara, but its obligation on the bond terminated by agreement with the city on July 10, 1974. It was not until August 27, 1974 that plaintiff contracted with Payload’s successor, C.I.C. Enterprises, the surety for which was Summit Insurance. International’s general denial was sufficient as a matter of pleading to raise the issue that it had never become obligated to plaintiff because its bond had terminated before plaintiff became a subcontractor on the project. Therefore, there was

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no reason for it to plead the city’s release of it from its contract as an affirmative defense. Since plaintiff presented no evidentiary facts to show that International’s bond had not been terminated before plaintiff became C.I.C.’s subcontractor, the complaint was properly dismissed.

Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur in memorandum.

Order affirmed.