
    Anna Stendal, Appellant, v. Frederick J. Ackerman, Respondent.
    (Supreme Court, Appellate Term,
    February, 1904.)
    Surety discharged by variations from the contract of suretyship.
    A surety, on an undertaking given on the arrest of a husband for contempt in failing to pay Ms wife alimony awarded her by an order made in an action for a separation and subsequently by the judgment therein, who has contracted that the husband would pay in accordance with the order or judgment or at all times render himself amenable to proceedings to punish him for the omission, is discharged from liability to the wife where it appears that instead of exacting alimony of her husband she before entry of the judgment became reconciled to her husband and lived with him for six months, and, that, although he then abandoned her, she waited for more than two years, after that abandonment and after entry of the order awarding alimony, before she applied under the judgment for an order for his arrest for failing to pay alimony, he having then run away, and that only then she sought to hold the surety liable and in the meantime had done other acts indicating an intention not to hold him.
    Appeal from a judgment in favor of the defendant, rendered in the Municipal Court of the city of Hew York, seventh district, borough of Manhattan.
    Bernard Vorhaus (F. W. Russell, of counsel), for appellant.
    Maxwell C. Katz, for respondent.
   Gilbersleeve, J.

The facts of the case are substantially as follows, viz.: The plaintiff herein obtained a judgment of separation on February 21, 1901, against her husband, one Edward Stendal, and a certified copy thereof was duly served on him in March, 1901. The judgment contained a provision requiring the defendant to pay alimony to the plaintiff. Previous to the entry of this judgment, and during the pend-ency of the action, the plaintiff obtained an order for the payment of alimony. The said Stendal neglected to pay alimony, as directed by said order, and he was arrested and held in bail. Thereupon the defendant herein, Frederick J. Ackerman, and one Gademan, entered into an undertaking wherein they bound themselves jointly and severally, in the sum of $500, that the said Stendal “ will obey the direction of the court or of an appellate court, contained in an order or a judgment, requiring him to perform the act specified in the order, or, in default of his so doing, that he will, at all times, render himself amenable to proceedings to punish him for the omission.” The parties became reconciled immediately after the trial, and before entry of judgment, and lived together again for about six months. On August 11, 1901, Stendal again abandoned his wife, and paid her nothing up to November, 1901, when she applied to the police court, and Stendal was required to give a bond for the payment of ten dollars a week to his wife for one year. For this period of one year Stendal paid the ten dollars a week, but, upon the expiration of the police court bond, in November, 1902, he refused to pay anything more. It appears that, during the period of reconciliation, and prior to the rendition of the judgment of separation, the plaintiff consented to have the undertaking, given in the Supreme Court action for separation, vacated. This consent, however, was never acted upon, and neither the undertaking nor the judgment has ever been vacated or modified by order of the court. Subsequent to the proceeding in the police court, the plaintiff, apparently supposing that the reconciliation had invalidated the judgment of separation, commenced another action for a separation, but the court held that the second suit could not be maintained, for the reason that the judgment in the first suit was still in full force and effect. See Hobby v. Hobby, 5 App. Div. 496. Subsequent to this decision, Stendal made a motion to vacate and set aside said judgment of separation, which motion was denied. Thereafter, and in July, 1902, the plaintiff applied, under said judgment, for an order of arrest against her husband for his failure to pay alimony between August and November, 1901, which motion was granted. The affidavits, upon which the order of arrest was granted, show that Stendal had no property that could he sequestrated. Efforts to serve the warrant of arrest, however, it seems were unavailing. The said Stendal has, apparently, run away and placed himself out of reach of service of legal papers. In January, 1903, a notice, entitled in the action of Anna Stendal v. Edward Stendal, was duly served upon Frederick J. Ackerman, the defendant in the case at bar, as surety on the undertaking, given in said action of Stendal v. Stendal, as aforesaid, of plaintiff’s intention to enforce the said undertaking. This notice, after reciting the preliminary facts, proceeds thus: “Please take notice that plaintiff (Anna Stendal) elects to proceed to punish the defendant (Edward Stendal) for his said omission and for his contempt, and has been, and is, unable to serve him with any proceedings for this purpose, and the said defendant cannot be found at any place within this State, and she believes that he has left this State. And the plaintiff requires you to produce the said defendant, so as to render him amenable to the proceedings contemplated, referred to and mentioned in your undertaking, or to pay to her the said sum of eighty-four dollars, now due, and all other sums as they may accrue due, under your said undertaking, and you will please take notice that otherwise action will be brought against you, without further notice, to recover the amount of your said undertaking, to which the plaintiff is entitled thereunder.” The defendant, upon the receipt of said notice, paid the said sum so due as alimony. Subsequently a notice similar to the notice above set forth was served upon the defendant, and the latter refused to make any further payments; whereupon this action was brought on said undertaking for- the alimony then due. The Municipal Court rendered judgment in favor of the defendant, and the plaintiff now appeals. The defendant is sued as a surety and the burden is upon the plaintiff to. show, before she can recover, that she herself has not been guilty of anything that may be said to change or alter the position defendant assumed when, he gave the undertaking. It was the duty of the plaintiff to proceed with reasonable diligence in the prosecution of her action, and, when judgment was entered in her favor, to make all reasonable efforts to secure its enforcement. This she did not do, but, on the contrary, instead of exacting from her husband the payment of alimony, as ordered by the court, between the close of the trial and the entry of judgment she became reconciled with her husband, cohabited with him and resumed peaceful marital relations. The affidavits of plaintiff and of her husband, made on February 19, 1901, a few days before judgment of separation was entered, are among the exhibits contained in the record. These affidavits state that the plaintiff and her husband had become reconciled and were living together, and contained consents, that the undertaking to secure the payment nf alimony be declared null and void.” It appears clearly from these affidavits that, at that time, it was the intention of the parties, either to abandon the suit for separation, or, when the judgment was entered, to apply for a revocation thereof. It was not until January, 1903, more than two years after the second abandonment, and about two years and nine months after the order of the court, which her husband failed to obey, and which failure created the alleged liability of the defendant under the bond, that plaintiff undertook to enforce her claim against the surety. Many things, as we have seen, intervened during this period. Under a misapprehension of her rights, apparently, and believing that by the act of reconciliation the judgment of separation had become null, plaintiff brought another action of separation, in which the court held that the judgment already obtained was still in full force, and that the second action, therefore, could not be maintained; she also secured an order of the police court requiring her husband to pay her alimony for a year, and it was paid; the husband moved to vacate the said judgment of separation, entered on February 21, 1901, which motion was denied. She secured an order in contempt proceedings under said judgment, against her husband, but was unable to serve the same, as the said husband could not be found within the State. These incidents in no way strengthen the position of the plaintiff in this action. They tend to show an absence of any intention on the part of the plaintiff to hold -the defendant upon his undertaking, which had been given for her benefit. It must be said that the course of the plaintiff was not a compliance with the implied terms of the contract of suretyship into which the defendant entered. It must be said that the course of the plaintiff may very well have tended to impose upon the defendant obligations which might not otherwise arise. The plaintiff was guilty of acts that impaired the defendant’s rights. The principle controll- ■ ing the obligations of sureties is distinctly set forth in Miller v. Stewart, 9 Wheat. 680, as follows: ETothing can be clearer, both upon principle and authority, than the doctrine, that the liability of a surety is not to be extended, by implication, beyond the terms of his contract. To the extent, and in the manner, and under the circumstances, pointed out in his obligation, he is bound, and no further. It is not sufficient that he may sustain no injury by a change in the contract, or that it may even be for his benefit. He has a right to stand on the very terms of his contract; and if he does not assent to any variation óf it, and a variation is made, it is fatal.” See also Gahn v. Niemceuiez, 11 Wend. 312.

The said Stendals placed themselves in a position, where, by their joint application to the court, they could have secured a revocation of the decree which would have canceled the bond. It was not the privilege of the plaintiff to trifle with the court and the surety by entering upon an experimental life with her husband, before and after the judgment of separation, and when it proved unsatisfactory, through a second abandonment, 'to invoke the legal rights which the judgment and the bond were intended to secure to her.

We think the plaintiff failed to make out a case of action against the defendant, for the reason that the implied terms of the contract of suretyship were changed without the -consent of the surety.

The judgment should be affirmed, with costs to respondent.

Ebeedmait, P. J., and Gbeeetbaum, J., concur.

Judgment affirmed, with costs to-respondent.  