Opinion
October 28, 1964
The claim is barred by virtue of the provision of the contract that "the final payment shall constitute and operate as a release"; as this was the effect of the receipt and collection by the surety company, the holder of an assignment of moneys due and to become due, of the State's check for the "final payment", the surety being a person "claiming by or through" the contractor, within the meaning of the contract. ( Brandt Corp. v. City of New York, 14 N.Y.2d 217; and see Buffalo Elec. Co. v. State of New York, 14 N.Y.2d 453.) The motion to dismiss should, therefore, have been granted. Indeed, claimant did not oppose the motion nor did it respond to this appeal. Order reversed, on the law and the facts, and claim dismissed, without costs. Gibson, P.J., Herlihy, Reynolds, Taylor and Hamm, JJ., concur.