97 N.Y.S. 270 | N.Y. App. Div. | 1905
The plaintiff brought an action • against the Castleton Water Supply Company to cdmpél it to carry out an agreement to deliver to him bonds of the par value of $2,000. The complaint in that action alleged that the plaintiff had paid to the water company the sutn of $2,000 tinder its agreement to deliver to him its first mortgage bonds- of the aggregate par value of $2,000. The judgment demanded was that the water company be decreed to specifically perform the agreement ‘by delivering the bonds and for such other relief as to the court might seem just. The water company made
There can be no doubt about the rule that contracts of suretyship are to be strictly construed in favor of the surety, but it has been repeatedly held that contracts of suretyship are to be construed, like other contracts, so as to give effect to the intention of the parties, and as stated by Judge Earl in People v. Backus (117 N. Y. 196), “ In ascertaining that intention we are to read the language used by the parties in the light of the circumstances surrounding the execution of the instrument and when we have thus ascertained their meaning we are to give it effect.”
When this undertaking is construed in this way then it se'ems to me clear that its purpose was to insure to the plaintiff the satisfaction by the water company, either by payment or otherwise, of any judgment which he might recover. The undertaking.in question was conditioned that the defendant pay the costs' and “ comply with any judgment or decree rendered herein.” The fact that thé pleadings were amended did not change the condition of the undertaking because the surety must have .contracted with reference to the right of the plaintiff* to amend his complaint (after the defendant had served an answer) within the time specified in section 542 of the Code of Civil Procedure, as well as with reference to the power which the court had to permit an amendment. The undertaking •was given subject to the exercise of this right and power. The complaint against the water company, while it demanded judgment for a specific performance of the agreement by delivery of the bonds, also contained a prayer for such other r.eliéf as to the court might seem just, and if at the .conclusion of the trial it had appeared that the defendant could not specifically perform, then the action being an equitable one, the court would have had the power to have given a judgment for damages, that is, that the Water company repay the' money which it had received, The condition of the undertaking is "that the defendant would “ comply with any judgment or decree” which might be rendered. It could only comply, in case a judgment for damages were recovered, by paying the judgment. The answer showed that the water company
The judgment and order appealed from should be affirmed* with costs. -
O’Brien, P. J., and Laughlin, J., concurred; Patterson and Houghton, JJ., dissented.
Judgment and order affirmed, with costs/