Cheesbrough v. Agate , 26 Barb. 603 ( 1858 )

Ingraham, J.

The defendant entered into a covenant with the plaintiff, by which he agreed to pay the plaintiff all sums of money which should be recovered against George V. House and Caroline E. House, in a certain action then pending in the superior court. Subsequently the plaintiff recovered in that action a sum of money, out of the separate property and estate of the defendant Caroline E. House, the wife. No judgment was entered against either of the defendants, other than a judgment for a sum of money to he collected out of the separate estate. Execution was issued in the same form. The only question is, whether under this covenant the defendant is liable. His only undertaking was to pay any sum of money which should be recovered against both the defendants in that action. He was a surety: as such he has a right to insist that his contract shall be construed strictly. He can only be held liable on the condition contained in it, viz : to pay any moneys for which both defendants shall be held liable. A recovery against the separate estate of one, does not bring the case within that condition, according to its literal interpretation; and the defendant’s liability may well be doubted. But the case, as it is submitted to us, is defective, and the defendant cannot raise that question on these papers. Whether upon the facts proven, the defendant is or is not liable, is a question of law. The referee has found upon the facts, and has found the law upon those facts to he that the defendant is liable. To this finding no exception has been taken. It is now well settled, that a case- must be prepared and settled, by the referee, containing the exceptions taken during the trial or after the trial, and if not so incorporated, questions of law cannot be reviewed on appeal. I need only refer to the cases of Hunt v. Bloomer, (3 Kern. 341,) and Johnson v. Whitlock, (Id. 344,) as settling this practice, beyond doubt.

[New York Special Term, March 1, 1858.

We think, therefore, the appeal in this case is not well taken, and that the same should be dismissed, and the judgment affirmed, with costs.

Ingraham, Justice.]