Harper Organization, Inc. v. Brick & Metal Wrecking Corp.

The third defense states facts from which it might be inferred that there was improper collusion between the plaintiff and the defendant principal, and fraudulent concealment from the defendant surety of the relations which gave rise to this collusion. Giving to it, therefore, the inferences most favorable to the- defendant surety, we hold it states facts sufficient to constitute a defense. The order appealed from will, therefore, be modified by denying the motion as to the *795third defense, and as thus modified affirmed, with ten dollars costs and disbursements to the defendant, appellant. Present — Dowling, P. J., Merrell, Finch, McAvoy and Proskauer, JJ. Order so far as appealed from modified by denying the motion as to the third defense, and as so modified affirmed, with ten dollars costs and disbursements to the defendant, appellant.