3. SAME.

An indemnity against costs and damages incurred in ejecting a trespasser from certain property does not include claims for personal servicesof the person indemnified.

4. SAME.

Neither does it include any claims which he may have for damagesagainst the trespasser.

Appeal from special term, New York county.

Action by Gerard Beekman and J. W. Beekman, trustees of the estate of J. W. Beekman, deceased, against Susan Van Dolsen, as executrix of A. Van Dolsen, deceased. From a judgment entered in favor of defendant for the balance of a counterclaim over and above the amount recovered by plaintiffs, and also from an order denying plaintiffs' motion for new trial, and also from order granting the defendant an extra allowance, plaintiffs appeal. Reversed. For former report, see 18 N. Y. Supp. 376.

Argued before VAN BRUNT, P. J., and O'BRIEN and FOLLETT, JJ.

Mitchell & Mitchell, (Wm. Mitchell, of counsel,) for appellants. Norwood & Coggeshall, (Carlisle Norwood, of counsel,) for respondent.

VAN BRUNT, P. J. This action was brought by the plaintiffs, as trustees and as individuals, they being as such trustees and individuals lessors in a certain lease made by them to the defendant's testator, Abraham Van Dolsen, to recover various sums of money on four causes of action. The first was to recover the value of the rent pursuant to the terms of the lease. The second was to recover the value of a certain retaining wall, bulkhead, and dock which were on part of the demised premises at the beginning of the term, but which it was claimed were negligently suffered and permitted to be injured and destroyed by the lessee. The third cause of action was to recover a sum of money claimed to be due from the defendant's testator pursuant to a written agreement made in reference to the erection of a small wharf or dock on the demised premises. The fourth cause of action was to recover damages occasioned by the failure of the defendant's testator to deliver the demised premises in as good a state and condition as reasonable use and wear would permit. The answer denied all liability upon the various causes of action set out in the complaint, and alleged as a defense to each cause of action that immediately prior to and at the time of the execution of the lease mentioned in the complaint (December, 1880) one Brainerd and one Thompson were in possession of the premises described in the lease with the assent of the plaintiffs, and that contemporaneously with its execution, at the express instance and request of the plaintiffs, there was executed and delivered between the defendant and said Brainerd and Thompson an instrument whereby the defendant appointed said Brainerd and Thompson his true and lawful attorneys in his name, place, and stead to collect wharf

age, rents, issues, and profits out of and to grow due to him under the said indenture of lease. That said Brainerd and Thompson, one or both of them, after the execution of the lease continued in the actual and physical possession of the premises until about the 1st of June, 1882, and that contemporaneously with the instruments above mentioned the plaintiffs executed and delivered to defendant an instrument, which, after reciting said lease and power of attorney, proceeds as follows: "Now, these presents witness that we, Gerard Beekman and James William Beekman, as individuals only, in consideration of the foregoing premises and of one dollar to us in hand paid, do hereby agree to and with the said Abraham Van Dolsen to hold him, the said Abraham Van Dolsen, harmless as to the acts of the said William C. Brainerd and George S. Thompson performed under the said power of attorney: provided, always, that he, the said Abraham Van Dolsen, revokes the said power of attorney upon the request made by us after reasonable notice that he make such revocation." That subsequently, in January, 1882, the plaintiff executed and delivered to the defendant another instrument, which, after reciting the lease and power of attorney, and that they had revoked and annulled the guaranty of said Brainerd and Thompson, and that the defendant in consequence thereof had revoked said power of attorney, and that, as they were informed, said Thompson continued to enter upon said. demised premises notwithstanding such revocation, and contrary to the wishes of said Van Dolsen, proceeds as follows: "Now, therefore, in consideration of the premises, we jointly and severally request the said Van Dolsen to treat according to law the said George S. Thompson as a trespasser on the said dock premises, and in consideration of the premises and one dollar we hold ourselves responsible for any cost or damage which may be incurred by the said Van Dolsen in treating according to law said Thompson as a trespasser as aforesaid." And that after the execution of said instrument the defendant proceeded against Thompson as a trespasser upon said premises, and expended a very large amount of his personal time in so doing prior to the 11th of November, 1882, of the value of $1,000, and incurred costs and expenses in legal proceedings and otherwise, and was damaged in the sum of $1,500; and the defendant demanded judgment for the sum of $2,500, and that the plaintiffs' complaint be dismissed, with costs. The plaintiffs replied to the counterclaim by alleging that the lease in question was executed by virtue of authority conferred upon them by the will of James W. Beekman, deceased, and that the premises demised in said lease formed part of the undivided residuary estate of said testator, and denied that the various papers referred to in the answer formed part of said lease, and alleged that the possession of Brainerd and Thompson was the possession of the defendant. They also denied that the instruments mentioned were exe cuted at their express instance and request, and admitted that they were executed at their suggestion; and said pleading contained various other allegations and denials which it is not neces

sary to mention here. Upon the trial a verdict was found by the jury under the direction of the court in favor of the plaintiffs on the first cause of action and in favor of the defendant as to the second and fourth causes of action; and, no proof having been offered as to the third cause of action, the court dismissed the same upon the motion of the defendant. A verdict was found for the defendant upon the counterclaim for the sum of $2,500, leaving a balance of some $884 in favor of the defendant over and above the amount of rent found to be due. After the rendition of the verdict, and before judgment, the defendant died, and the action was revived in the name of the present defendant as his executrix; and, a motion having been made for an extra allowance, an allowance of $500 was granted to the defendant, and a similar motion upon the part of the plaintiff was denied; and, a motion having been made for a new trial, the same was denied; and from said judgment and orders in respect to the extra allowance and denying the motion for new trial this appeal is taken.

Upon the trial the defendant offered proof under his cause of action to recover upon the guaranty mentioned in his answer, showing the commencement of various litigations in respect to the property mentioned in the lease, and also claimed to recover, and did recover by the verdict of the jury, compensation for the time spent by him in respect to these various litigations. It was insisted upon the trial, and is now urged by the appellants, that the defendant's claim for damages under the guaranty was not the proper subject of a counterclaim, because the guaranty was made by the plaintiffs as individuals only, whereas the causes of action set out in the complaint were in favor of the plaintiffs as trustees as well as individuals. We think that an examination of the instruments in question will show that this contention is without foundation, and that in the guaranty of January 19, 1892, made after the revocation of the power of attorney, the plaintiffs bound themselves in both capacities in which they seek to maintain this action. The guaranty commenced with the recital: "Whereas, Gerard Beekman and James W. Beekman,

as

trustees of the estate of James W. Beekman and as individuals, did grant," etc.; "and whereas, the said Van Dolsen did at our request appoint said Brainerd and Thompson," etc.; "and whereas, we did revoke and annul said guaranty," etc.: "Now, therefore, in consideration of the premises, we jointly and severally request the said Van Dolsen to treat according to law said Thompson as a trespasser on said premises, and in consideration of the premises and $1 we hold ourselves responsible for any cost or damage which may be incurred by said Van Dolsen in treating said Thompson according to law as a trespasser," etc. It is clear that the grantors described in the recitals of the instrument were the plaintiffs as trustees and as individuals, and the use of the words "we" and "us" throughout the instrument refer clearly to this recital. Such being the case, it would seem that there was an attempt upon the part of the plaintiffs to bind themselves v.24 N.Y.s.no.5-27

in both capacities, and that it was not intended to be simply an individual obligation; and that this was the intention and understanding of these plaintiffs is apparent when we read the guaranty of December 2, 1880, given to Van Dolsen, as to the acts of Brainerd and Thompson, performed under the power of attorney. That reads: "Whereas, the said Van Dolsen has at our request as individuals by duly-executed power of attorney appointed," etc. "Now, these presents witness that we as individuals only, in

consideration of the foregoing premises, do hereby agree," etc. The wording of this instrument clearly shows that when the plaintiffs intended to bind themselves only as individuals they were in no doubt as to what language to use. But in the subsequent instrument, which forms the basis of the counterclaim, they referred to themselves as trustees and individuals, and, without any attempt to separate their interests, executed the instrument. We think that it was plain that there was an intention upon the part of these plaintiffs to bind themselves by this guaranty in the same capacities in which they had executed the lease.

It is further claimed that the defendant could counterclaim under the guaranty only what would be the amount in which he was legally damnified, and not the amount for which he was legally liable, and that no proof of such damage was offered. It is urged that the law is settled in this state that, where the guaranty is against any liability, then the costs and legal damages which may have been incurred may be recovered, but where the contract is a guaranty against damage or a guaranty against loss, actual damage or actual loss must be shown before a recovery can be had. But it seems to us that, applying the rule above claimed, the point urged is not well taken. The guaranty is not against damage which may be suffered, but against cost and damage which may be incurred. "Suffered" means "paid," "incurred" means "become liable for." The language is, "we hold ourselves responsible for any costs and damages which may be incurred by said Van Dolsen," not "which he may suffer;" and the purport of the language is the same as though it read "which he may become liable for," because the incurring of a liability does not necessarily mean that such liability has been paid. This guaranty, therefore, seems to be an indemnity against liability incurred in the shape of costs and damage, and not simply an agreement to indemnify and save harmless for damage suffered. We think, however, that the objection that the defendant was allowed to recover the value of personal services in these proceedings against Thompson was well taken. The guar anty did not contemplate indemnity for personal loss of time. It was against all costs and damage which might be incurred by him, and it seems to us that it is plain that these terms referred to liabilities, and not to personal claims for services rendered. "Costs and damage incurred" do not seem to refer to claims for personal services, but rather to expenses and obligations incurred to others in carrying out the request of the guarantors.

The appellants also claim that the defendant was allowed to

recover for counsel fees and disbursements incurred in treating Thompson as a trespasser in excess of the terms of the guaranty, and that the various litigations which were commenced against Thompson and his licensees or lessees were not such as were contemplated by the guaranty. Various of these suits were brought to recover for the use of the premises by lessees of Thompson, and also against Thompson for the misappropriation of certain wharfages received prior to the date of the guaranty in question. These do not seem to be legitimate items of damage under the terms of the guaranty. It would seem to have been the intention and the scope of the guaranty that Van Dolsen should be indemnified in his attempts to eject Thompson as a trespasser from the premises, which is manifested by the recital that Thompson "continues to enter upon the said demised premises notwithstanding the said revocation, and contrary to the wishes of said Van Dolsen." It had no relation, therefore, to monetary claims of the defendant against Thompson and his lessees, whatever may have been the claim of the defendant under the instrument of December 2, 1880, which was executed by the plaintiffs as individuals only.

Several other exceptions have been called to our attention, some of which seem to be well taken, but, in view of the fact that a new trial must be had, it is not necessary to discuss them. We are of opinion that the judgment and order appealed from should be reversed, and a new trial ordered, with costs to appellant to abide the event, and that the order in respect to an extra allowance should be affirmed, without costs. All concur.

(70 Hun, 357.)

SMITH v. SECOND NAT. BANK OF NEW YORK.

(Supreme Court, General Term, First Department. June 30, 1893.) ANCILLARY ADMINISTRATOR-POWERS.

Code Civil Proc. § 2700, provides that an ancillary administrator must, unless otherwise directed by court, transmit the property of decedent, received by him, to the place where the principal letters were issued, to be disposed of according to the laws thereof. Section 2701 authorizes courts to direct him to pay creditors of the deceased within the state. Section 2702 provides that, with certain exceptions, or where special provision is otherwise made, or a contrary intent is expressed or plainly to be inferred, the provisions relative to the rights and powers of executors and administrators shall apply to an ancillary administrator. Held that, it not being the intention to repeal any of the provisions of the former sections by the latter section, an ancillary administrator had no power to pledge property of decedent.

Appeal from circuit court, New York county.

Action by Charles A. Smith, as ancillary administrator of Caroline Smith, against the Second National Bank of New York, to recover a bond, and to enjoin its sale. From a judgment dismissing the complaint, plaintiff appeals. Reversed.

Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.