Clark Plastering Co. v. Seaboard Surety Co.

O’Malley, J. (dissenting).

On the former appeal in a companion case herein (235 App. Div. 444) the majority declined *278jurisdiction upon the ground that the bond involved was statutory and that the procedure for its enforcement being anomalous to our law we might not enforce its provisions. The two dissenting justices did not specifically predicate their decision upon the ground that the bond was not statutory, but held merely that a cause of action was stated. This view prevailed in the Court of Appeals (259 N. Y. 424), it being held that there was jurisdiction whether the bond was statutory or…