
    Continental Casualty Company, Plaintiff, v. Milford Construction Corporation et al., Defendants.
    Supreme Court, Special Term, New York County,
    October 21, 1958.
    
      Jacob I. Goodstein for George Negri, Inc., defendant.
    
      Andrew Echel for plaintiff.
    
      Arthur H. Christy, United States Attorney, for United States of America, defendant.
   Henry Olay Greenberg, J.

Defendant George Negri, Inc. moves for dismissal of the complaint pursuant to subdivision 4 of rule 106 of the Buies of Civil Practice or, alternatively, for relief pursuant to rule 90. The action is brought by a surety upon bonds furnished pursuant to two contracts for public improvements. -While the movant is not precluded from instituting appropriate suit against the surety secondarily liable (see Negri, Inc. v. Milford Constr. Corp., 15 Misc 2d 1029) it is, nevertheless, bound by plaintiff’s right of exoneration whereby all claimants will receive their due in accordance with the paramount right of the city and of the surety to apply the moneys earned and the retained percentages to the satisfaction of all bonded claims. The statement of one cause upon two such contracts in the circumstances here is not prejudicial to the defendant.

The motion is denied.  