Mr. Justice Ingraham fully states the facts, but I am unable to agree with his conclusion. While the action was pending in the Supreme Court to recover on the $2,500 note, the mortgage was made which, in addition to the payment of the $2,500, provided that the mortgagors should also • pay “ all the costs and expenses incurred ” by the bank in that action. Construing the language employed and the intention of the parties, I think that what the mortgagors contracted to do was to save the bank harmless for “ all the costs and expenses ” in connection with the pending action. The incurring of a legitimate expense by the bank for counsel fee was proper and within the contemplation of the parties under the agreement. The bank having had the right originally to employ counsel in the suit and to contract to pay a reasonable fee for their services, which it appears it did, has the right to collect the same from the mortgagors. The only question, therefore, it seems to me, that arises in this case, is whether the sum charged for counsel fees is reasonable.
I think enough appears to show that $150 is an excessive charge and that $50 would be ample, in addition to the taxable costs. The mortgage being so conditioned that the payment of such a sum could be enforced, the judgment should be accordingly modified and as so modified, affirmed, without costs.
Judgment reversed, new trial ordered, costs to appellants to abide event.