
    THE TENTH NATIONAL BANK OF THE CITY OF NEW YORK v. ROBERT L. DARRAGH and ALBERT MARSH.
    
      Surety—admissions of principal, when admissible against—complaint dismissed— when.
    
    Action upon a bond given by Marsh, as principal, and Darragh, as surety, to secure to plaintiff the faithful performance of the duties of Marsh, as an officer of the bank. Marsh was guilty of a defalcation to an amount in excess of the penalty of the bond. The summons and complaint were served on both defendants, but Darragh alone appeared and answered. The court directed a verdict for the plaintiff for the penalty of the bond, with interest. The court admitted, against defendants’ objection and exception, the admissions of Marsh, showing his defalcation, made long after the transaction, and after he had ceased to be an officer of the bank; held, that this was error.
    
    The evidence n dt having been submitted to the jury, the judgment would be affirmed if there was sufficient legal evidence in the case to establish the liability of Darragh and justify the direction given by the court, independently of the unlawful evidence, as the court would be presumed to have acted on the legal evidence only; but as sufficient evidence did not appear in this case, to authorize the court to direct a verdict, the judgment was reversed.
    Appeal from a judgment, in favor of the plaintiff, entered upon a verdict.
    
      Joseph M. Dixon, for the appellant.
    
      E. E Faneher, for the respondents.
    
      
       Greenleaf on Evidence, § 187; 1 Phillips Ev., 194, 195, 201, 525, and cases there cited; Smith v. Whittingham, 6 Car. & P., 78; Moore v. Meacham, 10 N. Y., 207.
    
   Opinion by Davis, P. J.

Daniels and Donohue, JJ., concurred.

Judgment reversed and new trial ordered, costs to abide event.  