In regard to.the rule of strict construction, it is at least clear that the courts will be cautious in applying it to the contracts of compensated sureties. (St. John’s College v. Ætna Indemnity Co., 201 N. Y. 335; Town of Whitestown v. Title Guaranty & S. Co., 72 Misc. 498; affd., 148 App. Div. 900; affd., 209 N. Y. 512; Village of Newark v. Leary Const. Co., 118 Misc. 622.) But even where it does apply, it goes no further than preventing the coverage by implication of matters which were not in the contemplation of the parties at the time the bond *331was executed. (John Hancock Mutual Life Ins. Co. v. Lowenberg, 120 N. Y. 44, 49.) The extent of the surety’s undertaking always depends upon the intent of the parties; and that intent is to be determined from the language used when read in the light of the circumstances surrounding the transaction. (McElroy v. Mumford, 128 N. Y. 303; Ulster County Savings Inst. v. Young, 161 id. 23; Richardson v. County of Steuben, 226 id. 13.) I see no reason, under the amended complaint herein, why evidence may not be given showing all the circumstances surrounding the execution and delivery of the bond and of the note. Such evidence may very well establish the fact that the identical note referred to in the complaint was the note referred to in the bond; that it was so understood to be by defendant; and that it was the very instrument, payment of which defendant intended to guarantee. The inconsistency between the literal language of the bond and of the note is not conclusive as to the knowledge and intent of the parties. A similar inconsistency in language in McElroy v. Mumford (supra) Was no obstacle, even against gratuitous sureties.
The order should be affirmed, ‘ with ten dollars costs and disbursements.
Thompson, J., concurs.
Order reversed on the law, with ten dollars costs and disbursements, and motion granted, with- ten dollars costs, with leave to the plaintiff to plead over within twenty days upon payment of the costs of the motion and of this appeal.