
    The American Surety Co. of New York, Respondent, v. George A. McDermott, Appellant.
    (New York Common Pleas — General Term,
    June, 1894.)
    Plaintiff having become surety for the defendant for costs in an action brought by him as receiver, the latter executed to it a bond of indemnity in which he covenanted for “ himself, his heirs, administrators, successor and assigns ” that he, said George A. McDermott, would pay the premium charged for plaintiff’s engagement and indemnify it against liability thereon. The defendant was described therein and signed said bond “George A. McDermott, receiver.” Held, that he was personally liable upon said bond of indemnity, and that evidence was inadmissible to change such liability to a representative obligation as receiver.
    i Appeal from a judgment entered upon a trial before the court without a jury. For opinion below see 5 Mise. Rep. 298.
    
      John Frankenheimer, for appellant,
    
      John J. Crawford, for respondent.
   Bookstaver, J.

On the trial certain evidence was admitted provisionally, and upon the decision of this action the court ruled such evidence was inadmissible, and it was, therefore, stricken out, and to this ruling the defendant excepted in due season, and the main question upon this appeal relates to the admissibility of the evidence so stricken out.

The learned judge who tried the case correctly ruled, we think, upon this question, and for the reasons so clearly stated by him in his opinion there is left but little to add thereto. The intention of the appellant to bind himself personally and not in his representative capacity is clear from the provision which states, “ said George A. McDermott shall and will, pay in cash to said American Surety Company,” etc., the premium or charge of twelve dollars made by said company “ for executing said instrument and continuing the same,” etc., and by the further provision that,“said George A. McDermott shall and will at all times indemnify and keep indemnified,” etc. This language is explicit and precise and excludes any idea of the instrument being executed in an official capacity, although he described and signed himself as receiver. We fully concur with the learned judge who tried the case that the defendant as receiver had no power without an order of the court to bind the assets of the estate of which he was receiver by an executory contract, and in addition to the case cited by him, we would cite Vilas v. Page, 106 N. Y. 439, 451; Rogers v. Wendell, 54 Hun, 540, 543, 545.

There being no ambiguity in the bond or undertaking, it follows, for the reasons stated by the learned judge below, that the evidence stricken .out was not admissible; and this case affords an' excellent illustration of the propriety of such a rule. Appellant claims that the arrangements were made with Mr. Elmer, the president of the company, and that he agreed he would look for indemnity to the assets which might be realized by the receiver, and would not look to the defendant personally. Mr. Elmer is now dead, and it is quite impossible for plaintiff to disprove defendant’s statements. If he were alive it is not improbable he might show that the defendant had not recalled all the facts correctly; and it is inconceivable that he could have thus agreed, because it would have been absolutely no security whatsoever to the respondent in that event, for the appellant testified that all the estate he took, as receiver, was the right of action on which he brought the action. The undertaking was necessary to protect the respondent only in case that action should fail, for then only would the appellant have been liable for costs, and then, had the agreement been as contended for by him, there would have been no estate whatever out of which he could have paid them. In the only event in which by its terms such a contract could be enforced, it would be unenforcible for want of assets.

The judgment should, therefore, be affirmed, with costs.

Daly, Ch. J., and Bischoff, J., concur.

Judgment affirmed, with costs.  