
    ZIPP v. FIDELITY & DEPOSIT CO. OF MARYLAND.
    (Supreme Court, Appellate Division, Fourth Department.
    May 13, 1902.)
    Municipal Corporations—Work—Bonds—Materials Furnished Contract- or—Coal for Fuel—Statutes—Recovery from Obligors.
    Buffalo City Charter, § 478, as amended by Laws 1899, c. 577, enacts that the council may provide by ordinance that every bond for work for the city shall provide that every person rendering “services or materials in or about the execution of the contract” may recover of the obligors. Held, that where a bond was given under the statute for the construction of a retaining wall, the bond containing the clause as to recovery from the obligors, recovery might be had on the bond for coal furnished the contractor and used as fuel in producing power used in pumping and blasting.
    Appeal' from trial term, Erie county.
    Action by Henry Zipp against the Fidelity & Deposit Company of Maryland. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Argued before McLENNAN, SPRING, WILLIAMS, HISCOCIC, and DAVY, JJ.
    Thomas C. Burke, for appellant.
    Charles H. Ribbel, for respondent.
   SPRING, J.

In the early part of 1900'one Louis Kriess, Jr.,, entered into contracts with the city of Buffalo, whereby, for certain prices specified, he agreed to construct a retaining wall across-Evans Slip, on Erie street, in said city. As security for the performance of the said work and the payment of those who performed' services or furnished materials' in its construction, the defendant, a. foreign corporation, engaged in the business of guarantying the performance of contracts, duly executed on behalf of said Kriess’itsbond under seal bearing date May 22, 1900, to the city of Buffalo, pursuant to section 478 of the charter of the city of Buffalo, as amended by chapter 577 of the Laws of 1899. The condition of the obligation insured the fulfillment of the contracts by Kriess, and provided that if he “shall well and truly perform all the labor and furnish all the material necessary to fully complete the work or improvement therepi contemplated, and shall well and truly pay' for all material used and services rendered in the execution of sucb contract, then this obligation shall be void.” Said bond contained a further clause that any person “furnishing material or rendering services in or about the execution of said contract may maintain an action to recover for the same against the obligors * * * as though such person were named therein.” During the progress of the work two boilers and engines were used for excavating the-rocks, stones, and earth and for pumping the water frorn the slip. The plaintiff, at the request of the contractor, Kriess, furnished 150 tons of coal, for which the latter agreed to pay $479.48, and of which there remains unpaid the sum of $279.48, to recover which this action was brought. The coal was used as fuel in the boilers to create power, and there is no' dispute over the items of the bill, or the fact that it was furnished to Kriess, and at his request, to carry on the work. The defendant, however, contends that the claim of the plaintiff is not within the strict terms of its contract. In the interpretation of a bond or contract of this kind it is to be construed in view of the work to be performed and the circumstances surrounding its execution, and by the same rules which govern in the construction of any other agreement. Bank v. Young, 161 N. Y. 23-30, 55 N. E. 483; Gamble v. Cuneo, 21 App. Div. 413, 47 N. Y. Supp. 548. The contractor had entered into an agreement with the city of Buffalo which required blasting and cutting out rocks. The generation of power was essential in the performance of the contract, and when the defendant became responsible for the payment of “all materials used and services rendered in the execution of such contract” it might have expected that fuel was to be consumed in the undertaking. The coal used entered', into the execution of the agreement and formed a part of the value-of the work done as much as the labor of the masons or of the-men who aided in hoisting the stones into position to make up the wall. The materials used need not be a permanent constituent of the structure itself, but must be necessarily incident to the execution of the agreement to come within the purview of the defendant’s contract; and the coal consumed in carrying on the work is of that character. The defendant’s agreement was entered into to secure the performance of the contract by Kriess, and evidently to-protect the city against any liens by material men or laborers. It contemplated the performance of the contract by Kriess, arid whatever fairly comes within the compass of that work is also within the scope of the defendant’s contract. Under the mechanic’s lien law we apprehend a lien would attach for fuel furnished under the-circumstances here shown. Powder Co. v. Byrnes, 12 Abb. Prac. 469; Gallagher v. Karns, 27 Hun, 375. It is significant to note that the bond, following the wording of the statute authorizing it (chapter 577, Laws 1899), permits the action to be maintained for materials furnished or services rendered “in or about the execution of such contract.” Clearly, the coal, which was the fuel in producing the power to do the blasting and pumping, is within the language of that condition, for it was both in and about the execution of the agreement. The judgment should be affirmed, with costs to the respondent.

Judgment affirmed, with costs to the respondent. All concur.  