41 N.Y.S. 146 | N.Y. App. Div. | 1896
The plaintiff, a tenant of premises fronting on a street in the city of Brooklyn upon which an elevated railroad had been constructed, entered into the following agreement with the defendant:
“ This indenture, made this 6th day of October, 1892, between Thomas R. Browne and George P. West. Whereas, the first-named party is the owner of certain real estate situated on the west side of Fulton street in the city of Brooklyn, and known as number 304 and 306, which said property has been damaged by the construction and operation of the Kings County Elevated Railway, for which damage the first-named party purposes bringing suit against said railway company. Now, therefore, it is hereby mutually agreed that the said- West shall bring or cause to be brought in. the name of the party of the first part, a suit against said elevated railway company to recover the damages, and for such other and further
In pursuance of this agreement an action was brought in the name of the plaintiff against the Kings County Elevated Railroad Company by Theodore B. Gates, as attorney, to recover damages. In that action the plaintiff Avas unsuccessful, and the defendant therein recovered judgment for some eighty dollars costs, which the plaintiff was compelled to pay. Thereupon he brought this action against the defendant to recover that sum.
The first question- to be determined is whether, by the terms of the agreement between the parties, the defendant was bound to indemnify the plaintiff from any costs Avhich might be recovered against him in a suit against the railroad company. On the trial of the action the court permitted evidence, of a conversation between the parties and the oral statements of the defendant to show that, by the contract, the defendant was to indemnify the plaintiff against such liability. This evidence was improperly received. The written contract expressed the agreement between the parties and could not be varied or extended by oral evidence. This error, however, was harmless, as, in. our opinion,' under the proper construction of the written contract itself,-the defendant was bound to indemnify the plaintiff against any costs that might be recovered against, him.
The question then arises Avhether this contract thus construed is illegal. At common law it was unquestionably bad and could not be enforced, and the making of such an agreement was criminal. But it has been settled by authority that the common law relating
The judgment and order appealed from should be affirmed, with costs.
All concurred.
Judgment and order affirmed, with costs.