and 100 New York State Reporter undertook to guaranty to the plaintiff that at the end of the litigation, conducted according to the rules laid down in the law, he should be paid "the amount found due to him upon said accounting in this action." The defendant's counsel, by a process of reasoning carried to a length which compels acknowledgment of its seriousness, insists that this result must be defeated, because of certain intervening facts, which will now be considered. Upon the trial of the action between Sanger and French a judgment was entered upon the report of a referee in favor of the plaintiff for something over $60,000, which, with the costs and disbursements, aggregated $68,185.13, and it was directed that the plaintiff have execution therefor. At this time, the defendant failing to pay the judg ment within 30 days, and the obligors of the bond not having done so, there can be no doubt that the plaintiff in the present action was in a position to maintain an action against the defendant, Miner, whether we regard him in the light of a joint obligor or as a surety, unless an appeal from such judgment should "be taken to the general term or court of appeals, and security for the payment thereof be duly given as required by law to stay execution, and an undertaking on appeal be given as required by law." The plaintiff owed no duty of action. He had his judgment, and, unless it was appealed from in the manner prescribed by law, he could collect from the obligors of the bond. An appeal was taken to the general term, the defendant in that action, French, having in the meantime by motion (notice of which was served on the plaintiff, by whom it was opposed) secured a limitation of the amount of the security to stay execution to $50,000, as provided by section 1312 of the Code of Civil Procedure. On this appeal the judg ment was reversed, and a new trial ordered, but, on the plaintiff appealing to the court of appeals, the judgment of the general term was reversed, and the judgment of the special term was affirmed. Plaintiff has recovered the amount of the bond given on the appeal, and the present action is brought to recover the balance due to him under the original judgment, with the costs which have since accumulated. The action has resulted in a judgment in favor of the plaintiff for the full amount claimed, and from this judgment appeal comes to this court upon the questions of law raised by the exceptions to the findings of fact and conclusions of law. The contention of the defendant, as stated in his motion to dismiss the complaint, and which is relied upon on this appeal, is "that the plaintiff has made out no cause of action, and especially on the ground that, as appears by the evidence put in, the condition of this bond in suit was never complied with." In other words, the defendant complains that the limitation of the amount of the security to $50,000 on a judgment for over $68,000, without the consent of the defendant, was in fact an alteration of the terms of the bond, depriving him of security against which he would have had a remedy over. We have examined with care the authorities cited in support of this contention, but none of them is applicable to the facts in this case.. "The liability of a surety," to quote the language of the court in Savings Inst. v. Young, 161 N. Y. 23, 30, 55 N. E. 484, "is measured by his agreement, and is not to be extended by construction. His contract, how ever, is to be interpreted by the same rules which are applicable to the construction of other contracts. The extent of his obligation must be determined from the language employed when read in the light of the circumstances surrounding the transaction. Hence, where the question is as to the interpretation and meaning of the language by which a party has bound himself, there is no difference between the contract of a surety and that of a principal, or other party sustaining a different relation. It is when the intention of the parties has been thus ascertained that the principle of strictissimi juris applies, and then it is that the courts guard the rights of the surety, and protect him against a liability which is not strictly within the terms of his contract." Tried by this rule, the defendant can have no standing on this appeal. The plaintiff in this action had brought an action against Mr. French, and was intending to ask for a receiver. With this state of affairs confronting them, the defendant in this action joined with Mr. French and another in a bond, for the purpose of avoiding a receivership. This bond, conceding that it may be ambiguous, is to be construed most strongly against the obligors, for it is their promise. "This, certainly, should be the rule to the extent that the creditor has in good faith acted upon and given credit to the supposed intent of the surety." Belloni v. Freeborn, 63 N. Y. 383, 388. By any fair reading of the bond, in the light of these circumstances, the plaintiff agreed on his part to forego making any motion for a receiver, or to embarrass Mr. French by demanding that the money derived from the production of the play should be tied up pending the litigation, while the obligors of the bond promised that when the litigation should be determined, whether upon a final judgment at the trial, or after an appeal to the general term or the court of appeals, the plaintiff should be paid the amount of the judgment. If the plaintiff did not voluntarily waive any of the conditions of the bond,-and the evidence shows that he did not,-the defendant is clearly liable in this action. There was nothing in the conditions of the bond, or in the circumstances which surrounded its making, which called upon the plaintiff to take any action in reference to the securities to be given on appeal. He agreed to refrain from pursuing all of his legal remedies upon condition that the defendant, with the other obligors of the bond, should guaranty the payment of the final judgment, "or, if an appeal from such judgment be taken to the general term or court of appeals, and security for the payment thereof be duly given as required by law to stay execution, and an undertaking on appeal be given as required by law, then within thirty days after the termination of such appeal” the amount found due was to be paid. This was the promise of the obligors, and it was for them to elect whether to pay upon the final judgment, or after the appeals had according to the rules laid down in the law. To permit the defendant to take advantage of the wrong, if wrong it be, to proceed under the provisions of the Code of Civil Procedure in securing a reduction of the amount of the security, would be for the courts to sanction a fraud upon the plaintiff. The plaintiff, not having consented to the reduction of the security, is entitled to the protection which the bond of the defendant was intended to secure, and the judgment of the court below should be affirmed. The judgment appealed from should be affirmed, with costs. All concur. and 100 New York State Reporter FISCHER v. JORDAN et al. (Supreme Court, Appellate Division, Second Department. October 5, 1900.) 1. MECHANICS' LIENS-SECRET AGREEMENTS. A secret contract between the owner of real property and the person in possession, who contracts for the erection of a building thereon under an agreement that the owner shall pay therefor, that the cost shall not exceed a certain sum, will not defeat a mechanic's lien thereon. 2. PRINCIPAL AND AGENT EVIDENCE. Where a principal resisted payment on a contract on the ground that the agent making the contract had expended more money than he was authorized to do, the fact that he did not make such objection when the claim was first presented is strong evidence that the principal acquiesced in the contract of the agent. 3. SAME. In an action to foreclose a mechanic's lien under a contract with an agent, evidence that the landlord knew the work was in progress is sufficient to show consent thereto, within Laws 1897, c. 416, giving a lien on realty for materials furnished for its improvement with the owner's consent. 4. SAME-COMPLAINT-HARMLESS ERROR. Where a complaint in an action to foreclose a mechanic's lien states that defendant firm was composed of certain persons, when it was composed of other persons, the error is not ground of reversal when the only personal judgment recovered was against one who signed the contract in his individual capacity. Appeal from trial term, Kings county. Action by Henry C. Fischer against William B. M. Jordan and others to foreclose a mechanic's lien. From a judgment in favor of the plaintiff, the defendants appeal. Affirmed. Argued before GOODRICH, P. J., and BARTLETT, WOODWARD, HIRSCHBERG, and JENKS, JJ. Horace Graves, for appellants. HIRSCHBERG, J. The findings of the learned trial justice are supported, if not in every respect by the positive evidence of witnesses, at least by the facts, circumstances, surroundings, and general atmosphere of the case. The real estate, unimproved, belonged to the defendant Joseph Ryan, who became insolvent. He was largely indebted, among others to the firm of Claflin & Co., with whom the defendant Jordan was engaged as a credit man. Jordan acquired the title to the real estate under foreclosure, and the action is brought to foreclose a mechanic's lien for labor and materials performed and furnished by the plaintiff in erecting buildings upon the property after Jordan became the owner. The plaintiff testified that Ryan told him that Jordan's ownership was merely nominal, and that in fact the latter held the title for his (Ryan's) benefit. This is denied by the defendants, but the conduct of the parties seems quite inconsistent with such denial. There is no dispute, however, about the fact that Ryan took sole charge of the erection of the houses, made all the contracts with the mechanics and material men, and at the time of the trial was occupying the property, with the exception of one building, which had been sold before the filing of the lien. Ryan did this pursuant to a verbal agreement between Jordan and him self, by which Jordan agreed to pay for the houses in accordance with Ryan's contract with the men who should do the work and furnish the materials upon the O. K. or certification of Ryan that the accounts for work and materials were correct. Jordan does, indeed, endeavor to give to the transaction the semblance of a contract between himself and Ryan, by the terms of which the latter was to construct the houses for the sum of $30,000; but, as there was no written agreement, and Ryan was individually irresponsible, it is more reasonable to assume that Ryan either acted as Jordan's agent, or that Jordan was simply holding the property for Ryan's benefit as the true owner. In either view the plaintiff's claim holds good. He had a written contract for his work and materials, executed by Ryan, and the amount of his claim and lien is concededly due and owing to him. It is not pretended that the plaintiff, dealing in good faith with Ryan as the agent of Jordan (an undisclosed principal), would be bound by a secret limitation as to the amount which the buildings should cost. Nor did Jordan claim, when the plaintiff's bill was presented for payment, that Ryan had exceeded the limit of $30,000, and that, therefore, the plaintiff's bill would not be paid. On the contrary, Jordan offered and agreed to pay it, only demanding that the sum of $400 should be deducted for alleged delay in the doing of the work. No delay, or other cause for a deduction, was proven on the trial, and the willingness on Jordan's part to pay the claim when presented, provided the deductions were allowed, is a strong circumstance in support of the theory that he knew of and acquiesced in the plaintiff's contract as one by which he was legally bound under the terms and conditions of his understanding with Ryan. Regarding Jordan, however, as the real owner of the property, the case would seem to come within the principle of our decision in Butler v. Flynn, 51 App. Div. 225, 64 N. Y. Supp. 877. The equitable principle was there recognized that one who knowingly receives the benefit of the labor or property of another in the form of improvements upon his land ought to have his property subjected to a lien for the value of such improvements. This principle is embodied in the provisions of section 3 of the lien law (chapter 416, Laws 1897), and would seem to give to the plaintiff the lien sought to be enforced in this action whether Ryan be regarded as the real principal or as either the agent or contractor of Jordan. The contract between the plaintiff and Ryan was signed by the latter "S. J. Ryan's Son. Jos. Ryan." The complaint alleges that the defendants Sarah J. Ryan and Joseph Ryan constituted the firm of "S. J. Ryan's Son," but the defendants deny the existence of a co-partnership, and assert that "S. J. Ryan's Son" was an infant child of Sarah J. Ryan, deceased. In the view taken, the controversy on this point is immaterial. The transaction and the individual signature to the contract of the defendant Joseph Ryan are sufficient to render him personally responsible to the plaintiff. He acted as the real owner of the property throughout, with the full knowledge and apparent consent of the defendant Jordan, and in the judgment he alone is held for any deficiency which may arise upon a sale of the premises. The judgment should be affirmed. Judgment affirmed, with costs. All concur. (54 App. Div. 47.) and 100 New York State Reporter SKINNER v. ALLISON et al. (Supreme Court, Appellate Division, Second Department. October 5, 1900.) 1. COVENANTS BETWEEN ADJOINING LANDOWNERS-CONSTRUCTION-BUILDING RESTRICTIONS. A covenant between adjoining landowners that one should not erect a house within 13 feet of the line, but might extend a porch to within 3 feet, is violated by the extension of a gable of the second story of the house over a portion of the 13 feet, notwithstanding the erection of a porch beneath it; and the other party is entitled to recover at least nominal damages for the breach. 2. APPEAL REVERSAL. The rule that a new trial will not be granted to a plaintiff where, upon the entire case, it appears that he is entitled to recover nominal damages only, does not apply where an allowance of nominal damages is necessary to protect his property interests, as by preserving his future rights under a covenant. Appeal from special term, Westchester county. Action by Elizabeth Skinner against Elsie J. Allison, impleaded with Samuel B. Haines. Appeal by plaintiff from a judginent of the supreme court in favor of the defendant Allison after a trial at special term. Reversed. Argued before GOODRICH, P. J., and BARTLETT, WOODWARD, HIRSCHBERG, and JENKS, JJ. W. J. Townsend, for appellant. WILLARD BARTLETT, J. The appellant and the respondent own 'adjoining lands. This suit is brought to enforce a restrictive covenant, which forbids the erection by the respondent of any house within 13 feet of the line which separates her premises from those of the appellant. The language of the agreement is as follows: "The party of the second part further covenants not to erect any stable upon said premises, nor any house within thirteen feet of the northerly line of the property hereby conveyed, but a porch may extend to a distance of three feet from said line." It was proved upon the trial that the respondent has erected a house upon her property, which is so constructed that the gable end of the second story projects from the main portion of the house 13 inches over the restricted strip of 13 feet. The erection of this gable was plainly a violation of the covenant. It is found by the trial judge that "said overhang is fifteen feet from the ground, and is entirely over the porch which the respondent was permitted to build within three feet of the premises of the appellant." The porch has been constructed, and from the photograph in evidence it appears to be simply an uncovered platform or piazza at the end of the house, with three stone pillars, one at each outer corner and a third midway between. This porch has no roof or top. Inasmuch, however, as the encroachment consisting of the projecting gable end does not extend beyond the limits of the porch which I have described, the learned trial judge has held that the appellant appears to have suf fered no damage by reason of the erection of the gable end, and has |