(dissenting):
The construction given by Mr. Justice Ingraham to the terms of the bond seems to me to be both unreasonable and unjust.
If resort may be had to evidence alimide, then it appears without contradiction that Baird not only denied all liability for the *245Kelly claim, but expressed a determination to fight it to the court of last resort. This the comptroller and assistant corporation counsel knew before, when and after the bond was executed.
■ And that the judgment spoken of in the bond was intended to refer to the final judgment is shown by the practical construction which the parties placed upon it. The city and Baird took appeals, consulted together, and both concluded that there were errors on the trial of a character that must result in a reversal of the judgment. Tired of the litigation, or thinking perhaps that no better results would be obtained on a new trial, the assistant counsel to the corporation changed front and insisted, against the protest of Baird, in settling. If it be urged that the city was not obliged to run the risk of a greater recovery, and that Baird should have tendered a bond for a greater amount, the answer, it seems to me, is found in the fact that under the terms 'of the original contract between the parties upon which Baird gave .sureties there was a provision that he should indemnify the city for any damages which it might be obliged to pay for accidents or negligence. Besides, if the city wished for additional security, it' was bound to demand it; and, before entirely ignoring Baird’s rights, it should have notified Baird and insisted that such should be given, and that unless given within a time to be named, the city would settle. There maybe doubt, due to the language used in the bond, but if this doubt can be solved by outside evidence, then it appears .the-intention of the parties was that Baird should be assisted in fighting the claim “ to the finish; ” and the only mistake made was in the city’s exacting a bond for too small an amount, which, however, gave it ho right, against Baird’s protest, to settle and thus precipitate his liability on the bond.
I, therefore, dissent.
Order reversed and motion denied, with costs'to plaintiff.