
    National Surety Company, Respondent, v. St. Nicholas Rink Athletic Club and Cornelius Fellowes, Appellants.
    (Supreme Court, Appellate Term, First Department,
    February, 1915.)
    Bonds — liability of applicant for — agreement by applicant to indemnify surety against loss—when surety incurred no liability.
    A club licensed to hold boxing exhibitions after giving the bond required by chapter 779 of the Laws of 1911 held boxing exhibitions in the second year pursuant to the terms of its '■ licehse based upon a continuance of its surety’s liability under • the bond. Held, that the club, at least impliedly, consented to a continuance of such liability and the continuance of its own obligations to pay the second year’s premium and indemnify its surety for any payment made by it to the state under said bond.
    The liability of an applicant for a bond under said statute to indemnify the surety for loss thereunder cannot be extended beyond the period originally contracted for without the consent of the applicant.
    Where the applicant for such a bond for one year agreed to indemnify the surety against loss thereunder or under a continuation thereof, he cannot be held liable for the continuation of the bond which the surety chose to give to the state without the consent of the applicant and against his positive protest made át a time when the surety had incurred no liability on the bond.
    Appeal by defendants from a judgment of the Municipal Court of the city of New York, borough of Manhattan, third district, in favor of plaintiff, after a trial by a judge without a jury.
    Anderson, Iselin & Anderson (Outerbridge Horsey, of counsel), for appellants.
    Hastings & Gleason (Edward L. Dennis, of counsel), for respondent.
   Bijur, J.

This action arises out of facts presented

in an agreed statement accompanied by certain documents. From these it appears that on October 14, 1911, on a printed blank apparently prepared by plaintiff’s predecessor, the Empire Surety Company, the defendants applied for a bond, the purpose of which is described as to cover licenses to hold boxing exhibitions pursuant to chapter 779 of the Laws of 1911. The fourth item in the application reads: ‘ ‘ 4th. Bond to date from October 14th, 1911. Duration of liability one year.” (Words italicized are in writing, the balance is printed.) At the end of the application are two paragraphs, in the first of which “ The undersigned * * * agrees * * * to pay in advance the premium. # . namely, $100. annually until the Company is discharged or released * * * or until the Company shall have been furnished * * * due and satisfactory proof by evidence legálly competent by [by probably a misprint for. * for ’] such discharge and release.” In the last paragraph: “ The undersigned agree * * . * to indemnify the company from and against any and all loss * * * by reason or in consequence of the Company having executed said bond or bonds herein applied for, or a continuation thereof.” The bond which was issued upon this application was unlimited in point of time. The license was issued April 23, 1912. No boxing exhibitions were held during the year October 14,1911, to October 14, 1912. The first year’s premium was paid contemporaneously with the application. On October 16, 1912, plaintiff addressed to the defendant, St. Nicholas Rink Athletic Club, a letter asking that the club and the defendant Fellowes, for the purpose of renewing the bond, sign certain blanks inclosed. Immediately thereafter defendant Fellowes told the plaintiff, over the ’phone, that he was in no way responsible for the payment of further premiums or any sum which had or might have accrued subsequently to April 14, 1912, for the reason that the duration of liability of the defendants in respect of said bond was expressly limited to the term of one year from October 14, 1911. Boxing exhibitions were held in the month of April, 1913, as a result of which certain liability from the club to the state arose, was not paid by the club, but was liquidated by the plaintiff pursuant to the terms of the bond. For the amount so paid and for the premium of $100 for the second year this action is brought and judgment was rendered in favor of plaintiff.

Although both defendants appeal, I can see no ground on which the defendant club can claim to avoid liability. It held exhibitions in the second year pursuant to the terms of the license based upon a continuance of plaintiff’s liability under the bond and, therefore, at least impliedly, consented to a continuance of that liability, and the continuance of its own obligation to pay the premium and to indemnify the plaintiff.

As to appellant Fellowes, however, the situation is different. He not merely failed to consent to an extension of the liability for which he had originally contracted, but expressly disclaimed his intention to be bound beyond the term of his original contract. It cannot, I think, be successfully urged that the liability of an applicant for a bond to indemnify the surety company for losses thereunder can be extended beyond the period originally contracted for without the consent of the applicant. Were it otherwise, such liability could be continued forever, even against the applicant’s express dissent or protest. Appellant Fellowes having applied for a bond for one year, and having agreed to indemnify the company against loss thereunder or under a continuation of the bond, cannot be made liable for a continuation of the bond which the surety company chooses to give to the state of New York without Fellowes’ consent and, indeed, in this case, against his positive protest.

As to his liability for the second year’s premium it is to be observed that it was to continue until the bond was discharged or evidence furnished to the company to enable it to obtain such discharge. - Although the company pleads, and it is conceded, that it was not discharged until during the course of the second year, it is not pleaded and, of course, not proved that evidence was not furnished to the company at the close of the first year sufficient to enable it to obtain its discharge. Were any inference to be drawn from the agreed state of facts, it would be to the contrary, in view of the concession that no exhibitions were held during the first year. As the liability of the defendants for the premium is made to depend upon the absence of proof sufficient to entitle the bond to be discharged, and there is no allegation or evidence of the absence of proof, the judgment, as against Fellowes, must be reversed in its entirety and a new trial granted, with costs to appellant Fellowes to abide the event; but the judgment, as against the appellant St. Nicholas Rink Athletic Club, is affirmed, with costs of the appeal.

Guy and Gavegan, JJ., concur.

Judgment against Fellowes reversed and new trial granted, with costs to appellant Fellowes to abide event. Judgment against St. Nicholas Rink Athletic Club affirmed, with costs.  