
    The American Exchange National Bank, Plaintiff, v. Auguste Goubert et al., Defendants.
    (Supreme Court, New York Trial Term,
    May, 1910.)
    Damages — Evidence as to damages — In general — Sufficiency of evidence.
    Guaranty: Construction and operation — Nature, scope and extent of liability in general — Guaranty of collection: Remedies of guarantee ■—Conditions precedent.
    The fact that stock which has no market value sold at a certain date for a price below what appears to have been its book value at an earlier date is not enough from which to" infer a loss thereon to the holder during the intervening period.
    An undertalcing given by a surety as security for an indebtedness will not be construed as a guarantee of payment as distinguished from collection, where its language is satisfied by the latter construction.
    In such a case, in the absence of proof that plaintiff has exhausted the ordinary legal remedies for the collection of his debt, a recovery upon the undertaking will be restricted to the incidental damages for expenses of the litigation involved in resisting an injunction granted in the action in which the undertaking was given.
    Action upon undertaking.
    Joseph M. Hartfield, for plaintiff.
    Charles N. Morgan, for defendants.
   Bischoff, J.

So far as this action upon the undertaking proceeds for indemnity' for the plaintiff’s alleged loss through the prevention of the sale of the securities, the case has not been established, there being no proof that an actual loss resulted. The book value of the corporate assets as of December, 1906, disclosed a certain standard of the value of the stock, which value was slightly increased in December, 1907. The stock had no market value; and the mere fact that it sold at less than a price conforming to the 1906 and 1907 book value, when offered by the plaintiff at public sale in April, 1908, affords no basis for the finding of an actual loss, since the standards of value thus compared are in no way similar.

While the undertaking is properly to be construed as given as security ” for the indebtedness therein referred to (American Exchange Nat. Bank v. Goubert, 135 App. Div. 371), there is nothing in the words used to support the finding that the application was to secure payment, as distinguished from collection of the debt. The undertaking is not to be construed in such manner as to extend the surety’s obligation beyond the necessary and reasonable meaning of the words employed; and, so construed, a guaranty of collection is all that this instrument imports. An additional and broader liability may not be read into the surety’s contract according to well-settled rules of construction. Brandt Surety, § 106. There is, however, no proof that the plaintiff has exhausted its ordinary legal remedies as to collection of the debt; and it results that the recovery must be restricted to the incidental damages proven for expenses of the litigation involved in the resistance of the injunction itself.

There should be judgment for the plaintiff for $250. Form of decision and judgment may be presented on notice of settlement.

Judgment accordingly.  