Curia, per
Woodworth, J.
The defendants covenanted to pay all sums of money expended in improving First street, and to indemnify the plaintiffs from all actions, suits, costs and damages on account thereof. It evidently was the intention of the parties that the plaintiffs should be completely indemnified for all lawful acts in the discharge of their duty. It could not he foreseen, that groundless suits would not be commenced against them. They knew, that if drawn into litigation in such cases, expenses would necessarily accrue ; and, therefore, to guard against such a contingency, resorted to this covenant. If the bond is not to be construed in this manner, the indemnity is imperfect. To the plain*343tiffs the injury is the same, whether they are subjected to costs and expenses, by a party having a well founded claim, or by one who has not. In either case they must defend, and in so doing arc obliged to incur costs. The only difference would be, that, in the first case, they would be subjected to costs and damages, in the latter to costs only. The plaintiffs, as Trustees, may have proceeded with all requisite caution, and discharged their duty in good faith, and yet it might happen that some individual received an injury, in consequence of the improvements made, for which he would be entitled to maintain his action. If the plaintiffs had been guilty of gross negligence, or wilfully or maliciously injured the property of others, there would be no remedy on the bond. A stipulation to indemnify for such acts would be against law, and void. The plaintiffs were prosecuted by Gardner, who had no cause of action against them. The suit was instituted with a view to recover damages by reason of the acts of the plaintiffs in making the improvements on First street. That the condition extended to such a case is, to my mind, manifest. It is true, that a covenant to indemnify against all demands, dues and damages is tantamount to a covenant for quiet enjoyment, which goes to the possession, and not to the title; and that the latter is broken only by an entry and expulsion from, or some actual disturbance in the possession, without which no action can be maintained. (3 John. 471. 5 John. 120. 8 John. 198.) These cases were cited on the argument as analogous to the one before us, but they do not apply. Covenants for quiet enjoyment of land, or-to indemnify against incumbrances, have been settled by a series of decisions, and acted upon. They manifestly imply that the possession of the person indemnified shall be actually disturbed. An eviction must be shown. But in the present case, as well the intention of the parties, derived from the bond, as the expressions used, require a different construction. The indemnity is more extensive. The plaintiffs are to be protected against all costs to which they might be subjected on account of making the improvement. It is neither expressly, or by implication, put on the ground that a recovery must be had against the Trus*344tees. If this view he correct, the inquiry is, whether the plaintiffs have shown enough to enable them to recover.
The issue joined is substantially, whether the former rpmgteeg were sue¿ py Gardner for making repairs and improvements on First street; and whether they had paid the costs and expenses by reason of such prosecution. I think the plaintiffs have sufficiently established the affirmative. The suit of Gardner was professedly commenced to recove? damages for the acts of the plaintiffs as Trustees of Newburgh. The first count in his declaration alleges an obstruction of the old road between Water street and First street; the second count alleges that the plaintiffs filled up a sluice, and turned the water, by which Gardner was injured. It is true that Gardner abandoned the second count on the trial, but that is no answer to any part of the plaintiffs demand, for they were bound to come prepared to defend against all the counts—they all had reference to the improvements made ; the plaintiffs could not mistake the nature of the claim. Walter Case testified, that the sluice was in the centre of First street; when, therefore, Gardner stated in his second count, that the gravamen was, the stopping up the sluice, they were apprised that it pointed to the repairs made, equally, with the first count. Whether Gardner gave any evidence under the second count becomes immaterial. The costs in question are for resisting the claim until it was abandoned. Shutting up the old road was connected with, and formed a part of the improvements. Selah Reeve, a witness, testified that the work was done under his superintendence; that First street was raised from 2 feet 6 inches, to 3 feet, where it crossed Gardner’s old road; and that after the improvement the old road became useless.
It may be observed that the reasonableness of the costs, or whether the suit of Gardner might have been defended at less expense, does not seem to be drawn in question; nor does it appear what were the items constituting the bill of costs. If the defendants on the pleadings and case are liable, the amount is ascertained; it is the sum recovered of the plaintiffs and their costs in making a defence.
*345The breach assigned by the plaintiffs is, that the former Trustees incurred costs, in the defence of Gardner’s suit to $770 83 ; that they prosecuted the plaintiffs to recover the same, and did recover $859 33 ; that the plaintiffs expended $83 09 in the defence, of which the defendants had notice. The rejoinder is, that Gardner did not prosecute as stated in the replication, that the plaintiffs have not been obliged, nor have they paid such costs. That Gardner commenced such action, and failed, is fully shown. The plaintiffs proved that they paid the amount; that they were obliged to do so, is evident by the record of recovery against them. The defendants were requested to defend that suit, and refused or omitted. It is therefore conclusive upon them. (1 John. 517. 6 John. 158. 7 John. 168.) They cannot now litigate the question whether the costs claimed by the former Trustees, and recovered against the plaintiffs, were extravagant or not. They might have shown in the former suit what deductions, if any, ought to be made; not having done so, we are not to intend that more was recovered than necessary costs and expenses.
I have considered the facts stated in the case of the former Trustees against the plaintiffs, (Powell & others v. The Trustees of Newburgh, 19 John. 284,) as evidence in this cause. The stipulation is, that it might be in evidence as competent proof that the judgment before mentioned was obtained Upon the facts therein stated. This is a sufficient admission of those facts, without farther proof.
I am of opinion that the plaintiffs are entitled to judgment ; but no execution to be issued against the body of Griswold.
Judgment for the plaintiffs.