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UNITED STATES v. AMERICAN SURETY CO. OF NEW YORK

No. 254.

142 F.2d 726 (1944)

UNITED STATES, to Use and for Benefit of FOSTER WHEELER CORPORATION, v. AMERICAN SURETY CO. OF NEW YORK. ATLANTIC BASIN IRON WORKS v. UNITED STATES.

Circuit Court of Appeals, Second Circuit.

May 15, 1944.

Attorney(s) appearing for the Case

Kamen & Ostertag, of New York City (Bernard I. Kamen and Sol S. Ostertag, both of New York City, of counsel), for Foster Wheeler Corporation.

Bigham, Englar, Jones & Houston, of New York City (Arthur W. Clement and Henry J. Bogatko, both of New York City, of counsel), for American Surety Co. of New York, and Atlantic Basin Iron Works.

Harold M. Kennedy, U. S. Atty., of Brooklyn, N. Y. (Vine H. Smith and Mario Pittoni, Asst. U. S. Attys., both of Brooklyn, N. Y., of counsel), for the United States.

Before CHASE, CLARK, and FRANK, Circuit Judges.

CHASE, Circuit Judge.

This appeal is by the use plaintiff, who will be called the plaintiff, from a judgment in a suit it brought under the provisions of the Miller Act, 40 U.S.C.A. § 270b, in the District Court for the Eastern District of New York against the American Surety Company of New York. That defendant is the surety on a performance bond given to the United States by the Atlantic Basin Iron Works, hereinafter to be called Atlantic, when the latter entered...

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