
    The Mutual Life Insurance Co., Plaintiff, v. Charles J. Kroehle, Defendant.
    (Supreme Court, New York Special Term,
    November, 1899.)
    Discontinuance — Agreement therefor, if the defendant pays “ costs ” — Exaction of counsel fee.
    Where a mortgagee, and a surety for the mortgagor, agree in writing that an action, brought by the former against the surety to recover a deficiency which resulted on the foreclosure of the mortgage, shall be discontinued before answer upon the terms that he shall pay the claim with interest and “ costs ” and that the mortgagee shall thereupon convey to him the property foreclosed and also the deficiency judgment, the word “ costs ” must be construed to mean only such taxable costs as had then accrued ; and the mortgagee’s attorney has no right to exact a counsel fee also as a condition of discontinuance, and, failing to receive it, enter judgment for the deficiency and costs, the time to answer having expired during the negotiations.
    Motion to vacate and set aside a judgment in an action to foreclose a mortgage.
    William Rasquin, Jr., for plaintiff.
    Isaac Kugelman, for defendant.
   Soott, J.

The defendant gave his bond as collateral security for the payment of a mortgage for $4,000 held by plaintiff upon certain property in Hew Jersey. Upon a foreclosure of the mortgage there was a deficiency of $8,128.31, for which this action was brought. As soon as the action was begun the defendant, through a Hew Jersey attorney, addressed a letter to plaintiff offering to pay the deficiency, interest and costs, if plaintiff would convey to him the property covered by the mortgage. This offer was promptly accepted by the plaintiff, in a letter which said: “ If Mr¡ Kroehle will pay the company amount of claim, with interests and costs, we will convey the property and claim for deficiency to him.” The Hew Jersey attorney thereupon wrote to defendant asking the amount of the deficiency, costs and interest. This letter was answered by the gentleman who acts as attorney for the plaintiff in the present action, mentioning the fact of the pendency of this action in which defendant had appeared, and that it would be necessary to have a consent to a discontinuance of that action. He gave the items of the plaintiff’s claim, including an item reading, costs in Hew York action, $15.” A few days later, and before defendant’s time to answer or demur to the complaint had expired, a written contract was entered into between plaintiff and defendant, whereby plaintiff agreed to reconvey the mortgaged property to defendant on payment of the sum of $4,545, being the sum due upon the mortgage, with interests and costs of foreclosure, on or before Hovember 8, 1899, with costs of the plaintiff’s attorney in this action. On the appointed day, defendant, with his attorney, appeared at plaintiff’s offices prepared to complete the sale according to the terms of the contract. It will be seen that the amount of plaintiff’s costs in this action had not been specifically stated in the contract of sale, and defendant, construing the expression to mean taxable costs, tendered the sum of twenty dollars, an amount sufficient to cover all the costs that had accrued. Plaintiff’s attorney, being called in, insisted that the word “ costs ” as used in the contract-and the correspondence meant, and should be construed as meaning, not only taxable costs, but a fee to himself, as well, and stated that he deemed his services in commencing the action worth fifty dollars, and that he would have charged the plaintiff that sum besides his taxable costs. Defendant’s attorney demurred to this construction of the contract, and insisted that under it his client was required to pay only taxable costs. Plaintiff’s attorney at once left the room, and on the same day entered judgment, including in his judgment his costs, which were taxed at twenty dollars and ten cents, such sum including prospective disbursements for execution •and satisfaction piece. The defendant’s time to answer or demur in this action had expired between the date of the signing of the contract and the agreed date of transfer to him of the property, and it was doubtless in reliance upon the contract that he had allowed himself to get into default. Throughout the correspondence and in the contract there is no mention of any counsel fee to be paid by defendant. The only word used is costs,” which has a well-defined, and, when applied to legal proceedings, universally understood meaning, and that meaning does not include counsel fees. There is, furthermore, one consideration which makes it entirely improbable that the parties to the contract in using the word costs ” intended that it should bear any other meaning than that of taxable costs. The defendant had an absolute right at any time before judgment to a discontinuance of the action against him upon payment of the amount claimed, with interest and taxable costs to _ the date of payment, which is precisely what he offered to pay on November eighth. But in this case he was also entitled to something ..more. His only obligation to plaintiff was as surety for the payment of the mortgage which had been foreclosed, and upon payment of the whole amount due upon the mortgage he was entitled to an assignment of the judgment for deficiency against the principal debtor, and to a transfer of the property mortgaged. The plaintiff recognized this right of subrogation by its contract of October twenty-fifth, and, without clear words expressing a different intention, it is difficult to believe that the plaintiff intended to exact or defendant intended to agree to pay a sum in excess of his liability, and in excess of the amount which entitled him not only to a discontinuance of the action, hut an assignment of the securities held by plaintiff. In any event the defendant was entitled to rely upon the agreement as a settlement of the plaintiff’s claim against him, and was justified in permitting his time to answer to expire. Being ready at the appointed time to fulfill the agreement according to its terms, if the plaintiff then elected to refuse to perform, or insisted upon giving to the.agreement a construction not apparent from its language, it is at least reasonable that the defendant should be put back in no worse position than he would have been if the agreement had never been made. The motion to vacate and set aside the judgment will he granted, with ten dollars costs, and defendant permitted to answer or demur within ten days.

Motion granted, with ten dollars costs, with leave to defendant to answer or demur within ten days.  