
    THE WESTERN NEW YORK LIFE INSURANCE COMPANY, Respondent, v. DE WITT W. CLINTON, WILLARD F. LEONARD and others, Appellants.
    
      Principal and mrety— liability of swrety wh&re powers of principal cure increased.
    
    Appeal from a judgment entered on .tbe report of a referee. The action was on a bond, executed by the defendant De Witt W. Clinton, as principal, and the other defendants as sureties.
    
    On or- about April 1, 1871, as the referee finds, a contract was executed between the plaintiff and DeWitt W. Clinton, whereby the latter was appointed and employed by the plaintiff, a life insurance company, as its agent in certain counties of Western New York, “ to procure applications for insurances upon the lives of individuals * * * and to effect all kinds of insurances authorized by said company.”
    This -contract, as the referee found, “ was shown and read to the sureties ” at the time they executed the bond, and he also found, there was “ no proof that the sureties- were informed of any other or different agreement at any time prior to the execution of the ’bond, than the said agreement.”
    About the same time another agreement, of which the sureties had no knowledge, was entered into between the plaintiff and Clinton, by which his powers and responsibilities, and consequently the liabilities of his sureties, were increased. The referee held the sureties liable for the breach of duty of the agent under bót'h contracts. The General Term held, that to hold them liable for the performance of the latter contract, would be a fraud upon them (Burge on Suretyship, 224, 225; JPideoelc v. Hinton, 3 B. & C., 605), and reversed the judgment and ordered a new trial to be had before another referee, costs to abide the event.
    
      E. Oountryman, for appellants. Tarbox&Sherwin, for respondent.
   Opinion by

Mullin, P. J.

Present — Mullin, P. J., SMith and Gilbebt, JJ.

Judgment reversed and new trial ordered before another referee, costs to abide the event.  