
    Gerard Beekman et al, Trustees, App’lts, v. Susan Van Dolsen, Ex’rx, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 30, 1893.)
    
    1. Guabanty—By lessobs against expenses incubbed against teespassbb.
    By an instrument reciting that as trustees and as individuals they had leased certain premises to defendant’s testator; that a power of attorney to * B. and T. against whose acts they had guaranteed as individuals, had been revoked at their request, and that T. continued to enter upon the premises, plaintiffs requested said testator to treat said T. as a trespasser and agreed to be responsible for any ‘ ‘ cost and damage which may be incurred ” by him in so doing. Held, that it was the intention of plaintiffs to bind themselves in the same capacities iirwhich they had executed the lease, and that any cost or damage incurred by defendant could be properly counterclaimed in an action for rent and breaches of the covenants of the lease.
    3. Same—Construction.
    Such guaranty was an indemnity-against liability incurred in the shape of costs and damage, and not simply an agreement to indemnify and save harmless for damage suffered.
    3. Same.
    Such guaranty does not cover the value of personal services in suits against T. as a trespasser; nor costs and disbursements incurred in suits for monetary claims against T. and his lessees for use of the premises.
    Appeal by the plaintiffs from a judgment entered in favor of the defendant’s testator for the balance of a counterclaim over and above the amount recovered by the plaintiffs; and also from an order denying plaintiffs’ motion for new trial, and also from -order granting the defendant an extra allowance.
    
      Wm. Mitchell, for app’lts ; C. Norwood, for resp’t.
   Yak Brunt, P. J.

action was brought by the plaintiffs .as trustees aud as individuals, they being as such trustees and individuals lessors in a certain lease made by them to the defendant's testator, Abraham Yan Dolsen, to recover various sums of money in four causes of action. The first was to recover the value of the rent pursuant to the terms of the lease. The second was to recover the value of a certain retaining wall, bulkhead and dock, which were on part of the demised premises at the beginning of the term, but which, it was claimed, were negligently suffered and permitted to be injured and destroyed by the lessee. The third cause of action was to recover a sum of money claimed to be due from the defendant’s testator pursuant to a written agreement made in reference to the erection of a small wharf or dock on the -demised premises. The fourth cause of action was to recover ■damages occasioned by the failure of the defendant’s testator to ■deliver the demised premises in as good a state and condition as reasonable use and wear would permit.

The answer denied all liability upon the various causes of action set out in the complaint, and alleged as a defense to each cause of action that immediately prior to, and at the time of, the execution of the lease mentioned in the complaint, December, 1880, one Brainerd and one Thompson were in possession of the premises described in the lease, with the assent of the plaintiffs, and that cotemporaneously with its execution, at the express instance and request of the plaintiffs, there was executed and delivered between the defendant and said Brainerd and Thompson an instrument whereby the defendant appointed said Brainerd and Thompson his true and lawful attorneys, in. Ms name, place and stead, to collect wharfage, rents, issues and profits out of and to grow due to him under the said indenture of lease; that said Brainerd and Thompson, one or both of them, after the execution of' the lease continued in the actual and physical possession of the premises until about the 1st of June, 1882, and that cotemporaneously with the instruments above mentioned the plaintiffs executed and delivered to defendant an instrument, which, after reciting said lease and power of attorney, proceeds as follows:

“Now, these presents witness that we, Gerard Beekman and James William Beekman, as individuals only, in consideration of the foregoing premises, and of one dollar in hand paid, do hereby agree to and with the said Abraham Yan Dolsen to hold him, the said Abraham Yan Dolsen, harmless as to the acts of the said William C. Brainerd and George S. Thompson, performed under the said power of attorney. Provided always, that he, the said Abraham Yan Dolsen, revokes the said power of attorney upon the request made by us after reasonable notice that he make such revocation; ” that subsequently, in January, 1882, the plaintiffs executed and delivered to the defendant another instrument, which, after reciting the lease and power of attorney', and that they had revoked and annulled" the guarantee of said Brainerd and Thompson, and that the defendant in consequence thereof had revoked said power of attorney, and that, as they were informed, said Thompson continued to enter upon said demised premises, notwithstanding such revocation, and contrary to the wishes of said Yan Dolsen, proceeds as follows: “Now, therefore, in consideration of the premises, we jointly and severally request the said Yan Dolsen to treat according to law the said George S. Thompson as a trespasser on the said dock premises, and in consideration of the premises and one dollar we hold ourselves responsible for any cost or damage which may be incurred by the said Yan Dolsen in treating according to- law said Thompson as a trespasser as aforesaid; ” and that, after the execution of said instrument, the defendant proceeded against Thompson as a trespasser upon said premises, and expended a very large amount of his personal time in so doing prior to the 11th of November, 1882, of the value of $1,000, and incurred costs and expenses in legal proceedings and otherwise, and was damaged in the sum of $1,500; and the defendant demanded judgment for the sum of $2,500, and that the plaintiffs’ complaint be dismissed, with costs.

The plaintiffs replied to the counterclaim by alleging that the lease in question was executed by virtue of authority conferred upon them by the will of James W. Beekman, deceased, and that the premises demised in said lease formed .part of ' the undivided residuary estate of said testator, and denied that the various papers referred to in the answer formed part of said' lease and alleged that the possession of Brainerd and Thompson was the possession of the defendant They also denied that the instruments mentioned were executed at their express instance and request, and admitted that they were executed at their suggestion ; and said pleading contained various other allegations and denials which it is not necessary to mention here. Upon the trial a verdict was found by the jury, under the direction of the court, in favor of the plaintiffs on the first cause of action and in favor of the defendant as to the second and fourth causes of action; and no proof having been offered as to • the third cause of action, the court dismissed the same upon the motion of the defendant. A verdict was found for the defendant upon the counterclaim for the sum of $2,500, leaving a balance of some $884 in favor of the defendant over and above the amount of rent found to- be due.

After the rendition of the verdict, and before judgment, the defendant died, and the action was revived in the name of the present defendant as his executrix, and a motion having been made for an extra allowance, an allowance of $500 was granted to the defendant and a similar motion upon the part of the plaintiffs was denied; and a motion having been made for a new trial, the same was denied; and from said judgment and orders in respect to the extra allowance and denying the motion for new trial this appeal is taken.

Upon the trial the defendant offered proof, under his cause of action to recover upon the guarantee mentioned in his answer, showing the commencement of various litigations in respect to the property mentioned in the lease; and also claimed to recover, and did recover by the verdict of the jury, compensation for the time spent by him in respect to these various litigations.

It was insisted upon the trial, and is now urged by the appellants, that the defendant’s claim for damages under the guarantee was not the proper subject of a counterclaim, because the guarantee was made by the plaintiffs as individuals only, whereas the causes of action set out in the complaint were in favor of the plaintiffs as trustees as well as individuals.

We think that an examination of the instruments in question will show that this contention is without foundation, and that in the guarantee of January 19, 1892, made after the revocation of the power of attorney, the plaintiffs bound themselves in both capacities in which they seek to maintain this action. • The guarantee commenced with the recital: “Whereas * * * Gerard Beekman and James W. Beekman, * * * as trustees of the estate of James W. Beekman, and as individuals, did grant,” etc. “And whereas * * * the said Van Dolsen did, at our request, appoint said Brainerd and Thompson," etc. “ And whereas * * * we did revoke and annul said guarantee,” etc., “How, therefore, in consideration of the premises, we jointly and severally request the said Van Dolsen to treat according to law said Thompson as a trespasser upon said premises, and in consideration of the premises and one dollar we hold ourselves responsible for any cost or damage which may be incurred by said Van Dolsen in treating said Thompson according to law as a trespasser,” etc.

It is clear that the guarantors described in the recitals of the instrument were the plaintiffs as trustees and as individuals, and the use of the words “we ” and “us” throughout the instrument refer clearly td this recital. Such being the case, it would seem that there was an attempt upon the part of the plaintiffs to bind themselves in both capacities, and that it was not intended to be simply an individual obligation, and that this was the intention and understanding of these plaintiffs is apparent when we read the guarantee of the 2d of December, 1880, given to Yan Dolsen as to the acts of Brainerd and Thompson performed under the power of attorney. That reads: “Whereas, the said Yan Dolsen lias at our request, as individuals, by duly executed power of attorney, appointed,” etc., “Now, these presents witness that we * * * as individuals only, in consideration of the foregoing premises, do hereby agree,” etc.

The wording of this instrument clearly shows that when the plaintiffs intended to bind themselves only as individuals they were in no doubt as to what language to use. But in the subsequent instrument, which forms the basis of the counterclaim, they referred to themselves as trustees and individuals, and, without any attempt to separate their interests, executed the instrument. We think that it was plain that there was an intention upon the part of these plaintiff's to bind themselves by this guarantee in the same capacities in which they had executed the lease.

It is further claimed that the defendant could counterclaim under the guarantee what would be only the amount in which he was legally damnified, and not the amount for which he was legally liable, and that no proof of such damage was offered. It is urged that the law is settled in this state that where the guarantee is against any liability, then the costs and legal damages which may have been incurred may be recovered; but where the contract is a guarantee against damage, or a guarantee against loss, actual damage or actual loss must be shown before a recovery can be had.

But it seems to us that, applying the rule above claimed, the point urged is not -well taken. The guarantee is not against damage which may be suffered, but against cost and damage which may be incurred. Suffered means paid; incurred means become liable for.

The language is “ we hold ourselves responsible for any cost and damages which may be incurred by said Yan Dolsen;” not “which he may suffer;” and the purport of the language is the same as though it read “which he may become liable for;" because the incurring of a liability does not necessarily mean that such liability lias been paid. This guarantee, therefore, seems to be an indemnity against liability incurred in the shape of costs and damage, and not simply an agreement to indemnify and save harmless for damage suffered.

We think, however, that the objection that the defendant was allowed to recover the value of personal services in these proceedings against Thompson was well taken. The guarantee did not contemplate indemnity for personal loss of time. It was against all costs and damage which might be incurred by him, and it seems to us that it is plain that these terms referred to liabilities, and not to personal claims for services rendered. Costs and damage incurred do not seem to refer to claims for personal services, but rather to expenses' and obligations incurred to others in carrying out the request of the guarantors.

The appellants also claim that the defendant was allowed to recover for counsel fees and disbursements incurred in treating Thompson as a trespasser in excess of the terms of the guarantee, and that the various litigations which were commenced against Thompson and his licensees or lessees were not such as were contemplated by the guarantee. Various of these suits were brought to recover for the use of the premises by lessees of Thompson, and also against Thompson for the misappropriation of certain wharfages received prior to the date of the guarantee in question. These do not seem to be legitimate items of damage under the terms of the guarantee. It would seem to have been the intention and the scope of the guarantee that Van Dolsen should be indemnified in his attempts to eject Thompson as a trespasser from the premises; which is manifested by the recital that Thompson “ continues to enter upon the said demised premises notwithstanding the said revocation and contrary to the wishes of said Van Dolsen.” It had no relation, therefore, to monetary claims of the defendant against Thompson and his lessees; whatever may have been the claim of the defendant under the instrument of December 2, 1880, which was executed by the plaintiffs as individuals only.

Several other exceptions have been called to our attention, some of which seem to be well taken, but, in view of the fact that a new trial must be had, it is not necessary to discuss them.

We are of opinion that the judgment and order appealed froth should be reversed and a new trial ordered, with costs to appellants to abide the event, and that the order in respect to an extra allowance should be affirmed, without costs.

Follett and O’Brien, JJ., concur.  