
    Mary M. Boyle, Resp’t, v. Josiah W. Boyle et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed June 14, 1887.)
    
    1. Lien—Of attorney—Partition.
    Defendant retained an attorney in a partition suit, under a verbal agreement that he should have a lien on his share, to he paid from the proceeds of sale, and afterwards assigned his interest to other parties. Held, that the attorney had the first lien.
    2. 'Same—Bond of indemnity.
    Defendant, who was an administrator, gave his surety a lien upon his interest in the estate, to protect the latter against liability. The surety was put to expense in compelling defendant to make a proper accounting. Held, that such loss was not covered by the bond.
    Appeal from supreme court, general term, first ■ department, affirming an order of the special term, confirming the report of the referee as to the priority and amount of hens in an action for partition of lands.
    Maria Mansfield, dying in 1883, an action of partition of her real estate was brought by the heirs at law, and the share of William W. Mansfield was deposited with the chamberlain of the city of ¡New York, “to the end that the parties entitled thereto may make such application therefor as they may be advised.” Mansfield retained Andrew J. Rogers in the action, agreeing to pay him $400, less any costs and allowances awarded to Rogers in the judgment, to be paid out of the proceeds of the sale.
    Letters of administration on Maria Mansfield’s estate were issued to William W. Mansfield, June 1, 1887, Henry J. Welch being one of the bondsmen, and to secure him Mansfield gave a bond of indemnity making such loss, if any occurred, a lien upon his share of the estate. Mansfield not returning an inventory to the surrogate, and otherwise misbehaving himself, was arrested and imprisoned for contempt, by order of the surrogate, but finally, and through proceedings brought by Welch, was forced to and did make & proper accounting, and his account was adjusted by the surrogate. The appellant, Annie L. McCahill, also had a lien on the estate for $1,000 loaned Mansfield, August 17, 1883, and for which he gave her an assignment of all his interest in the estate. A referee found that Rogers, Welch, and McCahill had liens in the order named, and his decision being affirmed at special and general terms, this appeal was brought.
    
      De Witt C. Brown, for Mrs. McCahill; John W. Goff, for Henry J. Welch; Jas. C. De La Mare, for A. J. Rogers
    
      
       39 Hun, 658, mem.
      
    
   Per Curiam.

We are satisfied with so much of the order appealed from as directs that the claim of Mr. Rogers, as attorney in the partition suit shall be first paid out of the proceeds in the hands of the court, but we are not satisfied with the priority awarded to Welch. He was surety upon Mansfield’s bond as administrator, and to protect him against that liability the assignment relied upon was made. But no such liability ever occurred. Mansfield, in the end, settled his accounts, and was discharged, and the decree shows that he paid out in funeral expenses more than the whole amount of the estate. Welch’s loss did not come from his liability on the bond, but first from his effort to be discharged as surety, for which Mansfield was not accountable, and second, from his own interference in an endeavor to make Mansfield account. The expenses he incurred were the product of his own fears, and not contemplated by the indemnity, or fairly within its terms. While its language is quite broad, it plainly does not cover an expenditure not created by the suretyship, but by his own hostile endeavor to to be rid of it. The purpose is stated to be to guard the bondsmen “from any loss or error that might arise from or be caused by said Mansfield’s administration of said personalty.” There was no such loss. The administration resulted in none. It came from W elch’s fears that there might be one, and his own voluntary action and expenditure. The language expressing what is to be paid out of the share assigned is, “such loss, expense, sum, or sums of money as the said Henry J. Welch and Patrick J. Evans may incur or be put to from any loss, error, mishap, or cause whatsoever in relation or regard to their suretyship on the said bond.” Here, again, is contemplated some loss flowing from liability as surety, and which is incurred or put upon them from that cause. It is expressed again, “ for any loss or expense they or either of them sustain or incur by reason of their surety-ship on my said bond.” No such loss occurred. Welch could have remained surety, and relied upon his indemnity. He chose not to do so. He sought to be relieved from the risk. That was his privilege; but the cost of it was not within his indemnity. He incurred further expenses in hostility to Mansfield. The result proved they were needless. Welch has his judgment against Mansfield, but is not entitled to be paid in preference to Mrs. McCahill.

So much of the order as gives him that preference should be reversed; the order modified so as to give Mrs. McCahill preference in payment next after Rogers; no costs of this appeal to be allowed either party.

All concur.  