
    Fanny M. Bernard-Beere, Appellant, v. Marc Klaw and Abraham L. Erlanger, Impleaded, etc., Respondents.
    (Supreme Court, Appellate Term,
    May, 1901.)
    Bond of indemnity — Hot to be varied by parol.
    Liability under a bond of indemnity cannot be extended by parol evidence.
    Bernard-Beere v. Klaw, 32 Mise. Bep. 7G5, affirmed.
    Appeal from affirmance by the General Term of the City Court of the city of New York of a judgment, entered upon the dismissal of the complaint. •
    In 1892, the plaintiff, an English actress, came to this country under a contract with the defendant Mayer, a theatrical manager, for a tour during the theatrical season of 1892-93. After a time and mutual discussion, said parties agreed to cancel their contract upon a settlement between themselves. One of the topics discussed and one of the elements of the settlement was a claim made by Mrs. Bernard-Beere that she was under a contract with Mr. Charles Wyndham to produce in this country during that season a certain play named the “ Fringe of Society ”, belonging to said Wyndham, for at least fifty performances at a certain percentage of the gross receipts to be paid to him, a'nd for Such performances as did not take place twenty-five dollars per night, and she claimed that inasmuch as her contract with Mayer was to he abrogated and she could not present the fifty performances of that play she would be liable to Wyndham in the sum of $1,250, and demanded that that sum be paid to her to liquidate Wyndham’s claim against her, in addition to the other tax terms personal to herself. As the result of such negotiations, on the 8th day of December, 1892, the following paper was executed:
    “ Whereas, Mrs. Bernard-Beere claims that she may be or become liable to Charles Wyndham in the gum of Twenty-five dollars a performance for fifty performances of the play entitled ‘ The Fringe of Society ’ to be given in a tour of America, during the season of 1892 and 1893, on a paper writing of which the annexed is a copy. And Whereas as a condition for the cancellation of an agreement between Marcus R. Mayer and the said Mrs. Beere, she requires that she be indemnified and held harmless against and from the payment of the said amount due or any other amount which may become due to the said Charles Wyndham thereunder,
    “ Row, in consideration of the premises and of the sum of one dollar to us in hand paid by the said Mrs. Bernard-Beere, the receipt whereof is hereby acknowledged, we do hereby jointly and severally promise and agree tó and with the said Mrs. ■ BernardBeere, that we will and hereby do indemnify and hold her harmless against and from the payment of any sum of money to the said Charles Wyndham, under or by reason of said contract.”
    This was signed, sealed and acknowledged by all the defendants. Attached thereto was the following, alluded to in the first paragraph as “ a paper writing of which the annexed is a copy ”— “ Charles Wyndham: I agree to take the Fringe of Society for a tour in America this year of 1892-and 1893. I will pay three per cent of gross receipts for each performance — weekly settlement. I guarantee you at least fifty performances during said tour, or failing that number, will pay you three per cent of gross receipts for such performances as take place, and for the balance at the rate of twenty-five dollars per performance. I will not part with this right to the piece without your permission or being understood that it is reserved for me. October 11th, 1892.” The complaint alleged that “thereafter and on the 7th day of December, 1894, under and by reason of the said contract referred to in this said bond, this plaintiff was compelled to and did pay to the said Charles Wyndham $1,250, had demanded the repayment of said sum from the defendants, who had refused payment, and it demanded judgment therefor.”
    To sustain the issues, plaintiff offered testimony tending to show the facts and circumstances surrounding the making of this bond of indemnity, the existence of a contract between the plaintiff and said Wyndham upon the precise terms set forth in the “ paper writing ” attached to the bond, the payment to Wyndham by plaintiff of $1,250 in accordance with the terms of their contract and the facts and circumstances of that payment.
    All of this testimony was excluded.
    The complaint was dismissed and the judgment entered thereon was affirmed on appeal by the General Term of the City Court.
    Howe & Hummel, for appellant.
    Mitchell L. Erlanger, for respondents Jefferson and others.
    Dittenhoefer, Gerber & James, for respondent Mayer.
   Per Curiam.

The bond of indemnity in terms restricted the liability of the defendants to the amount which the plaintiff might be called upon to pay under a written contract. The obligation could not be enlarged in an action brought to enforce the stated liability, and the sole purpose of the evidence, excluded at the trial, was to show the existence of a contract not covered by the bond in suit.

Doubtless, a reformation of the instrument, to express the intention of the parties, might have been obtained in an action brought for that purpose in a court having jurisdiction to grant the appropriate relief, but, having elected to sue upon the instrument as it stands, the plaintiff has invited defeat and has left us no alternative but to affirm the judgment.

Present: Bischoff, P. J., Leventritt and Clarke, JJ.

Judgment affirmed, with costs.  