
    National Surety Company, Respondent, v. James O. Winston et al., Composing the Firm of Winston & Company, et al., Appellants.
    
      National Surety Co. v. Winston, 161 App. Div. 594, affirmed.
    (Argued March 23, 1916;
    decided April 11, 1916.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 6, .1914, affirming a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury. Defendants having been awarded a contract by the city of New York procured an undertaking from the Empire State Surety Company which thereafter became insolvent and reinsured all of its risks with plaintiff, assigning to it all of its good will, agreements of insurance and reinsurance, indemnity agreements and the like, plaintiff agreeing on its part to assume and fulfill all the outstanding contracts of the Empire State Surety Company. Neither the city of New York nor defendants were parties to this agreement, nor so far as appears have consented to it, but. on the other hand it does not appear that the city has called on defendants to substitute other security. This action is for a premium which fell due and which defendants refused to pay.
    
      A. T. Clearwater for appellants.
    
      William R. Page for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Chase, Collin, Cuddeback, Cardozo, Sea-bury and Pound, JJ. Dissenting: Willard Bartlett, Oh. J.  