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BATAVIA KILL DIST v. DESCH

83 A.D.2d 97 (1981)

Batavia Kill Watershed District in the County of Greene, Appellant, v. Charles O. Desch, Inc., et al., Respondents

Appellate Division of the Supreme Court of the State of New York, Third Department.

November 5, 1981

Attorney(s) appearing for the Case

Walter J. Heffernan (Larry F. Gardner of counsel), for appellant.

Couch, Coulter & Howard, P. C. (Leslie F. Couch of counsel), for respondents.

MAHONEY, P. J., and MIKOLL, J., concur with HERLIHY, J.; MAIN and YESAWICH, JR., JJ., dissent and vote to affirm in an opinion by MAIN, J.

HERLIHY, J.

In May of 1973, plaintiff entered into a contract with defendant Charles O. Desch, Inc. (Desch) for the construction of a dam by Desch. A performance bond was issued by defendant Travelers Indemnity Company (Travelers), guaranteeing Desch's performance.

In September of 1974, plaintiff terminated the contract for alleged unsatisfactory performance and thereafter Travelers refused the demand...

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