
    Fidelia R. Manning, App’lt and Res’pt, v. John B. Sweeting, Res’pt and App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 14, 1886.)
    
    1. Principal and surety—Extent of liability—Alimony.
    The defendant became surety for the payment of alimony by plaintiff’s husband at the rate of nine dollars per week, which alimony was afterward increased to fifteen dollars a week by order of the court but without the surety’s consent. The husband having failed to pay the alimony, the surety was only liable to the extent of nine dollars per week, but was not liable for the expense of the burial of the child of the parties to the divorce action.
    2. Same—Interest—When should not be allowed.
    As security for the payment of the alimony the surety had deposited certain bonds with a trustee, which bonds had been sold and turned into money to pay the alimony. If the payments, which were larger than the surety was required to make, had not been made, the money would have been without interest in the trustee’s hands. Held, the plaintiff would not be required to pay interest on the excess received but only to refund the excess.
    Appeal from a judgment entered in favor of plaintiff at a trial of this action at the Kings county special term.
    Plaintiff brought this action on an undertaking given by the defendant to secure to the plaintiff alimony at the rate of nine dollars a week allowed to her in a suit brought by her against her husband, John Gr. Manning, in the city court of Brooklyn, for limited divorce, for a balance of said alimony claimed to be due and unpaid. After the defendant gave said undertaking he deposited in court $5,000, in bonds, to secure the payment of said alimony. The receiver appointed by the court applied part of the proceeds of said bonds to pay said alimony, a part to pay additional alimony at the rate of six dollars a week, and a part to pay the funeral expenses of the son of said plaintiff. The case was tried at special term.
    The contest in this case is wholly and simply whether the plaintiff should be allowed a greater sum or whether she has been allowed too much. The plaintiff claims that the over-payments made to her for additional alimony, at six dollars a week, and for the funeral expenses of the son, amounting in all to $910.25, should not be charged to her. Defendant claims that this sum should be charged to the plaintiff as found by the court, and also interest on each item making up said sum from the time of the payment of the same to the time when the same became due to plaintiff for alimony due to her at the rate of nine dollars a week.
    
      William T. Gilbert, for pl’ff; J. Douglas Brown, for deft.
   Barnard, P. J.

Under the findings, and there is no case made showing the evidence, the $5,000 bonds belonged to the defendant individually. He had signed an undertaking for the plaintiff’s husband to secure the payment of alimony at the rate of nine dollars a week. By order of the court, the surety deposited the bonds as further security for the payment.

The findings do not show that a right was reserved in the decree to increase the alimony, but it was increased by the court to fifteen dollars a week, and no doubt it was properly done upon notice to the defendant in the divorce suit.

The surety had not agreed for a greater sum than nine dollars a week, and his liability could not be increased without his assent, and the findings show none. It was, therefore, improper for the court to sell the bonds by order and direct the payment of the increased alimony out of the surety’s property.

It was also improper to apply the proceeds of the bonds to the burial of the child of the parties in the divorce action. The surety had not so agreed. As to the increased alimony, the plaintiff received the money and ex equo el bona received.it for the use of the surety, and it must be applied on the payment of the alimony the surety agreed to pay. The same result must follow the payment of the burial expenses. The findings of fact do not state specifically whether the payment of this bill was made to the plaintiff, but it is so to be inferred from the findings of fact, .and it is so stated in the conclusions of law.

The appeal of the plaintiff does not show any error calling for a reversal or modification of the judgment. The appeal of the defendant presents the question whether interest is allowable upon the illegal payments. The sale of the bonds was legal. It was to furnish the money with which to perform defendant’s obligation. The trustee exceeded the authority which could be given in making a larger payment than defendant was obliged to pay.

If this payment had not been made the money would have been without interest in the hands of the trustee under the decree. The plaintiff has promised to pay no interest in express terms. It was a mistake in amount, and if she pays it back by an allowance on her real claim, there should equitably be no interest. It was a payment in advance of the nine dollars weekly allowance, and the defendant is still in arrears.

The judgment should be affirmed, without costs to either party upon appeal.

Pratt and Dykman, JJ., concur.  