#### Gansevoort Bank of the City of New York, Respondent, *v.*Virginia Keahon, as Administratrix, etc., of Patrick H. Keahon, Deceased, and Others, Appellants, Impleaded with Thomas A. Adams, Respondent.

First Department,

June 2, 1911.

Guaranty and suretyship — contract of guaranty construed.

A guaranty whereby the defendants requested the plaintiff “ to guarantee to the owners of the steamer *Bag fin *** * the payment of the freight ” on certain asphalt “ from Venezuela to *New*York, and also all other charges incident thereto not exceeding the sum of $4,000,” and which also covered “any advances that you may find it' necessary to make on account of such freight or other charges connected with the delivery of said asphalt,” is limited to the advances made on account of the freight and other charges connected with the. delivery of the specified amount of asphalt by the steamer *Bagfin*at the city of *New*York.

Moneys paid for the -purchase of asphalt, duties and other-necessary charges come within the langua'ge of the guaranty.

It is error in an action on the written guaranty alone to submit to'the jury items not covered thereby. - '

Appeal by- the defendants, Virginia Keahon, as administra-trix, etc. ,■ and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of .the' *215county of New York on the 30th day of November, 1909, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 8th day of December, 1909, denying the said defendants’ motion for a new trial made upon the minutes,

*John Conway Toole*of counsel *[James A. Jeering,*attorney], for the appellants Murphy and others.

*Michael J. Scanlan,*for the appellant Virginia Keahon, administratrix.

*Henry. B. Twombly*of counsel *[Richard B. Kelly,*attorney], for the respondent Adams.

*Philip J, Britt,*for the plaintiff, respondent.

Clarke, J.:

This action was to recover §10,105.48, with interest from the 15th day of March, 1906, claimed to have been paid and advanced by the plaintiff for the benefit and use of the defend- ■ ants. The respondent states in its brief: “It is quite true 3⁄8 3⁄8 * that the cause of action pleaded is on the written guarantee alone, and the plaintiff in this action has not at any time claimed that the defendants heróin were liable for the repayment of the various advances made by the bank for their benefit under any other contract, written or oral.”

The paper referred to is as follows:

> “New York, *May 12th,*1904.

> “Gansevoort Bank,

> “ Cor. 14th & Hudson Streets, New York City:

> “Gentlemen. — We hereby jointly and severally request you to guarantee to the owners of the steamer £Dagfin,’.now at New Orleans, the payment of the freight on from six hundred to one thousand tons of asphalt from Venezuela to New York, and also all other charges incident thereto not exceeding the sum of $4,000. This guarantee- also covers any advances that you may find it necessary to make on account of such freight or other charges connected with the delivery of said asphalt, or any part thereof, to the city of New York, and we hereby jointly and severally, request you to guarantee said *216freight and. charges, or make such advances for our account as you may find it necessary, in order to procure the delivery of the said asphalt at the city of New York.

> *“*Respectfully yours;

> “P. H. KEAHON,

> “JAMESE. GAFFNEY,

> “ jno. j. murphy;

> “R. G. COLLINS, Jr.

> *“May*M. “T. A. ADAMS, 3⁄4 only.’’

Attached to the complaint is a schedule of moneys claimed to have been advanced upon the faith of this written guaranty, the first of which is May 6, 1904, six days before it was signed, and the last January 14,' 1905.' The appellants claim, *first,*that the guaranty was limited to the amount therein stated, to wit, $4,000; *second,*that if not.so limited it was limited to the advances made on account of the freight of other charges connected with the delivery of from 600 to 1,000 tons of asphalt in order to procure the delivery thereof by the steamer *Dagfin*at the city of New York.

We think the clearly expressed purpose of this document was to guarantee the hank to the extent set forth in the second claim expressed *supra.*

Immediately after the execution of the written guaranty and on May 13, 1904, the hank delivered its check for $3,é00 for payment in advance for charter of the *Dagfin*and for coal and other charges, and on June twenty-fourth its check for $-397.28 for the same purpose, which makes a total of $3,997.28 for- the ship. In order to procure the asphalt and land it at New York it was necessary to pay for the purchase of the asphalt, duties and other necessary charges which fairly and necessarily come within the express language of the guaranty. The vessel arrived and was unloaded and the asphalt was delivered in July, 1904.

The total amount of all the charges attributable to the voyage of the *Dagfin*and the delivery of the said asphalt in the city of New York is $8,064.89. The interest, on said amount from March 15, 1906, the interest' date claimed in the complaint, to November 30, 1909, the date of the judgment entered *217herein, is $1,794.42, making a total of $9,859.31. The asphalt was sold by the bank for $1,459.63 and the proceeds credited to the account. The interest thereon amounts to $325.39, making a total of $1,785.02, which leaves as the amount of the recovery to'which the plaintiff was entitled upon the facts disclosed by this record, $8,074.29 upon the date of the judgment. The other items proved and upon which plaintiff recovered were not covered by the written guaranty and were improperly submitted to the jury upon this trial.

The interpretation which we put upon the guaranty and' the items which we allow were proved in such a manner and by such proof as to eliminate any necessity of considering the objections by Mrs. Keahon, the administratrix of Patrick H. Keahon, to the admission of certain evidence as against her. The defendant Adams, who was responsible under the guaranty for one-fourth the amount thereof, has paid the amount found due as against him by the judgment and is not an appellant here.

The. judgment, so far as appealed from, should be reversed and a new trial ordered, with costs to the appellants to abide the event, unless plaintiff stipulates to reduce the amount of the judgment as of the date originally entered to $8,074.29, with costs as taxed, in which event the judgment as so reduced is affirmed, without costs to any party upon this appeal.

Ingraham, P. J., McLaughlin, Laughlin and Scott, JJ., concurred.

Judgment, so far as appealed from, reversed and new trial ordered, with costs to appellants to abide event, unless plaintiff stipulates as provided in opinion, in which event the judgment as so reduced is affirmed, without costs. Order to be settled on notice.