
    Samuel W. Erdle and F. Elizabeth Erdle, Plaintiffs, v. Millson M. Bassett and Beth Bassett and The American Surety Company of New York, Defendants.
    (Supreme Court, Chautauqua Special Term,
    April, 1916.)
    Appeal — from judgment — undertaking on — in action to recover possession of real property — liability for costs.
    By an undertaking given on appeal from a judgment in favor of plaintiff, in an action to recover possession of certain real property, defendant, a surety company, was obligated:
    1. To pay all costs and damages which may be awarded against the defendants on appeal.
    2. That the defendants will not, "while in possession of the premises described in the complaint, commit, or suffer to be committed, any waste thereon.
    3. If the judgment is affirmed, or the appeal is dismissed, and there is a deficiency upon the sale, the defendants will pay the value of the use and occupancy of the property from the time of taking the appeal until the delivery of possession thereof.
    Upon the submission of a controversy as to the extent of the > liability of defendant, the judgment having been affirmed on. appeal, held, that defendant was liable only for costs on appeal, not for all of the costs of the action, nor was it liable for taxes . and the premium on insurance, nor for ordinary repairs.
    The words in the undertaking “a deficiency upon a sale” having no application, as the judgment appealed from did not provide for a sale of the property in question, should be treated as surplusage and the undertaking construed to mean that the surety would pay the reasonable value of the use and the occupation of the premises pending the appeal from the judgment.
    Submission of controversy upon an agreed statement of facts.
    
      Nugent & Heffernan (A. E. Nugent, of counsel), for plaintiffs.
    Palmer & Rowe (Murriel L. Rowe, of counsel), for defendants.
   Bissell, J.

The question to he determined in this proceeding, instituted upon an agreed statement of facts, is the extent of the liability of the defendant American Surety Company of New York, upon its undertaking as surety for the .defendants Millson H. Bassett and Beth Bassett. The plaintiffs recovered a judgment in this court on the 1st day of March, 1915, for the possession of certain premises situate in the village of Silver Creek, N. Y., together with seventy-seven dollars and ninety-two cents costs of the action. The defendants thereupon appealed from this judgment to the Appellate Division of this court, and on March 15,1915, obtained an order staying all proceedings under the execution issued on the judgment pending the appeal. A judgment affirming the judgment of the trial court with ninety-one dollars and forty - eight cents costs and disbursements of the appeal was entered on the 22d day of December, 1915.

The defendants Bassett occupied the premises from December 1, 1912, until December 15, 1915, when possession was surrendered, but no sums of money have been paid by them to the plaintiffs on account of the use and occupancy of the property between February 1, 1914, and December 15, 1915, nor has anything been paid on account of the judgment of March 1, 1915, or the judgment of December 22, 1915.

The plaintiffs claim that there are due them under the contract of suretyship the following amounts: First, the sum of seventy-seven dollars and ninety-three cents, with interest from March 1,1915, the costs and disbursements awarded to plaintiffs by the judgment of March 1, 1915; second, the sum of ninety-one dollars and forty-eight cents, the costs and disbursements awarded by the judgment of affirmance of the Appellate Division, with interest thereon from December 22, 1915; third, the sum of fifty-two dollars and eight cents, the taxes for 1914 and 1915 and water rent of the premises; fourth, the sum of one hundred and fifty dollars, estimated to be necessary to repair the property; fifth, the sum of seven dollars and fifty cents, insurance premium paid for insurance on the property; sixth, the sum of one hundred and twenty-seven dollars and fifty cents, the value of the use and occupancy of the property from the 12th day of March, 1915, to the 15th day of December, 1915.

The defendants admit the liability of the American Surety Company for the item of $91.48, costs and disbursements of the Appellate Division, with interest from December 22, 1915, but deny the surety company’s liability for any of the other items claimed by the plaintiffs. The undertaking of the defendant surety company provides that “ it does undertake in the sum of $800 that the appellants will pay all costs and damages which may be awarded against them on the said appeal, and does also undertake that the said defendants will not, while in possession of the prem ises described in the complaint, commit, or suffer to be committed, any waste thereon, and does also undertake that if' the judgment is affirmed or the appeal dismissed, and there is a deficiency upon a sale, said defendants, Millson M. Bassett and Beth Bassett, will pay the value of the use and occupancy of such property, or the part thereof as to which the judgment is affirmed, from the time of taking the appeal until the delivery of possession thereof, pursuant to the judgment or order.”

The first item disputed by the defendants is the item for the costs of the trial of the action, amounting to seventy-seven dollars and ninety-three cents, with interest. It must be understood at the outset that the defendants Bassett may have a liability to the plaintiffs distinct from and greater than the liability of the defendant surety company. In this proceeding the liability of the surety company alone is to be determined, and must be determined by a strict interpretation of the contract of suretyship entered into by it.

This contract obliges- the surety company to do three things:

1. To pay all costs and damages which may be awarded against the defendants on appeal.

2. That the defendants will not, while in possession of the premises described in the complaint, commit, or suffer to be committed, any waste thereon.

3. If the judgment is affirmed, or the appeal is dismissed, and there is a deficiency upon the sale, the defendants will pay the value of the use and occupancy of .the property from the time of taking the appeal until the delivery of possession thereof.

In Bennett v. American Surety Co., 73 App. Div. 468; affd. on opinion below, 179 N. Y. 548, Justice Patterson says, in determining a similar question: “ The question here is as to the measure of liability of the surety company under its contract, and not the amount of costs recoverable of the plaintiff in the action in which that undertaking was given.”

In Burdett v. Lowe, 85 N. Y. 241, which was followed in Bennett v. Surety Co., supra, the undertaking under consideration, being in the same language as the undertaking in the present case, holds distinctly that the surety is only liable for costs on the appeal to the appellate "court, not for all of the costs of the action.

The defendant surety company is, therefore, required to pay only the costs of the Appellate Division, to wit, ninety-one dollars and forty-eight cents, with interest thereon from December 22, 1915. The remaining items claimed, if allowed, must fall within the definition of waste or the definition of use and occupancy. It is apparent that the payment of taxes and of insurance premium do not fall within either of these definitions and cannot be allowed.

Waste is defined as “ spoil or destruction done or permitted to lands, houses, or other corporeal hereditaments by the tenant thereof. Bouvier’s Law Dictionary. In its essential elements waste is the same in this country and in England, being a spoliation or destruction of houses, trees, etc., to the permanent injury of the inheritance. ’ ’ 40 Cyc. 501.

It does not appear that any direct damage of any kind was done to the premises by the occupation thereof from the time the appeal was taken. The necessary wear and tear, which may have been incurred, and the necessary repairs which a tenant is required to keep up in his occupancy of any real property, are not included within the term “ waste,” and, therefore, the item of $150, estimated to be necessary to defray the expense of repairs to the property, cannot be allowed.

The item of $127.50, claimed for use and occupation, the reasonable rental value of the property during the pendency of the appeal, should be allowed. It is apparent that in preparing the undertaking the provisions of section 1331 of the Code of Civil Procedure were copied, and resulted in the insertion of the reference. to “ a deficiency upon a sale,” which clearly has no application to this case, as the judgment appealed from did not- provide for a sale of the property, in question. The reference should, therefore, be treated is surplusage, and the undertaking construed to mean that the surety undertakes that if the judgment is affirmed, or the appeal dismissed, the defendants Bassett will pay the reasonable value of the use and occupancy of the premises pending the appeal. This would seem to be the reasonable construction to be placed apon this clause of the undertaking. The item of $127.50 is, therefore, allowed in this case. Clason v. Kehoe, 87 Hun, 368.

A judgment may be entered by the plaintiffs against the defendants for $91.48, with interest thereon from December 22, 1915, and for $127.50, with interest thereon from December 15, 1915.

Pursuant to the stipulation of the parties, no costs will bé included in the judgment.

Judgment accordingly.  