
    LEWIS McKENZIE vs. ALICE E. UNDERWOOD.
    Bond; Counsel Fees; Damages.
    When one person gives another a bond to save him harmless from all costs and damages to be sustained by reason of his becoming surety on another bond, and such other person is obliged to pay counsel fees in defending an action against him on the latter bond, such counsel fees are recoverable in an action on the former bond.
    In Equity.
    No. 10,165.
    Decided October 24, 1892.
    The Chief Justice and Justices Hagner and James sitting.
    The complainant’s cause of action was based upon a bond of indemnity to save him harmless from all costs and damages which he should suffer in consequence of his becoming a surety at the request of the obligors in the indemnifying bond. The bill alleges that he had suffered costs and damages in consequence of his becoming such surety, and states that the costs and damages consist of moneys paid out by him in defence of an action on the official bond upon which he was such surety, the greater part of the moneys so paid out being for counsel fees. To this bill of complaint the defendant interposed a demurrer. The Special Term sustained the demurrer, thus deciding that as a matter of law the bill did not set up a good cause of action. The complainant appealed from this decree, and the General Term reversed the decree of the Special Term, and thus having disposed of the question of law, remanded the case to the Special Term, which passed a decree in favor of the complainant. From this decree the defendant appealed, and the decree of the Special Term was reversed and the bill dismissed.
    The complainant then filed a -petition for a rehearing, which was denied.
    
    
      Messrs. H. O, & R. Claughton for petitioner,
    Messrs. J. Ambler Smith and Cole & Cole for defendant.
   The opinion of the court, delivered by

Mr. Justice James,

upon the petition for a rehearing was as follows:

This is a motion for a rehearing in the case of McKenzie vs. Underwood. In the reported opinion, only one of three or four points involved in the case was really discussed or positively decided.

Other points, however, were involved in the determination of the case and were considered and decided. One of them was that the fund which the petition proposed to reach, as the property of Judge Underwood in the hands of his administratrix, never formed a part of his estate, but consisted of an appropriation for the benefit of his wife after his death.

It is immaterial whether we were right or wrong on the point discussed in the opinion. In any case that fund could not be reached.

It is suggested in the petition for rehearing that the case was hastily decided by the court. It was carefully considered.

The decree which we reversed held the defendant, who was an administratrix, personally liable. Of course that was incorrect if the assumption of the decree that she held the property in question as administratrix of the estate of John Underwood was wrong.

The rehearing, therefore, is denied, and the motion is overruled.  