Opinion
April 3, 1950.
Action to recover for damages caused by blasting and on the provisions of a bond given pursuant to ordinances of the City of Mount Vernon, which are set forth in the complaint. Order of the County Court of Westchester County, as resettled, denying a motion to dismiss the complaint for insufficiency, reversed on the law, with $10 costs and disbursements, and the motion granted, without costs. The bond alleged to have been given pursuant to ordinance is broader than that required. Recovery in these actions is predicated on the obligation, incorporated in the bond, which is not required by the statute. The obligation in the bond, insofar as it is broader than that required, is not available to a third party in the absence of consideration, which is not alleged in the complaint. ( Seaver v. Ransom, 224 N.Y. 233; Post v. Doremus, 60 N.Y. 371; People v. Metropolitan Sur. Co., 211 N.Y. 107.) The bond cannot be considered to be a common-law instrument because the complaint expressly alleges that it was given pursuant to statute, and for the further reason that there is no allegation in the complaint that the municipality required the broader provision. ( Clark Plastering Co. v. Seaboard Sur. Co., 237 App. Div. 274; Merchants Mut. Cas. Co. v. United States Fidelity Guar. Co., 253 App. Div. 151. ) Carswell, Acting P.J., Johnston, Adel, Wenzel and MacCrate, JJ., concur.