It is assumed by the learned counsel for the respondent that the decision in the case of Association v. Conkling, 90 N. Y. 116, disposes of this appeal. A very brief examination, however, of the case cited, will show'that it has no application whatever to the case afcbar, except so far as it may declare the general principles which are to govern the construction of contracts. It is laid down in the case cited as a rule of construction that a surety is never to be held liable beyond his specific engagement, and his liability is always strictissimi juris, and must not be extended by construction. This contract must be construed by the same rules which are used in the construction of other contracts. The extent of his obligation must be determined by the language used, read in the light of the circumstances surrounding the transaction. But when the intention of the parties has thus been ascertained, then the court will carefully guard the rights of the surety, and protect him against liability not strictly within the precise terms of his contract. The action was brought, as was the one at bar, against a surety who had executed a bond to the plaintiff at the time it employed the
In the case at bar the condition of the bond was as follows: “That if the .above bounden Otto Baumann, who has been appointed clerk of said Union Dime Savings Bank by its board of directors, shall faithfully and honestly .discharge his duties as such clerk, or in whatever capacity he may serve said bank, and shall faithfully apply and account for all such moneys, funds, valuables, and property which may come into his hands or under his control as such .clerk, and deliver the same on proper demand to the order of the board of directors of the said Union Dime SavingS'Bank, or to the person or persons authorized to receive them, without any fraud or other delay, then this obligation to be void; otherwise to remain in full force and virtue.” It is to be observed .that the position in the bank which*the appointee was to occupy is in no way referred to in the condition of this bond. He is simply described as a clerk, .or, in other words, as a servant and employe of the bank; and therefore, as long as he remained a clerk or servant or employe of the bank, he comes within the condition.of the bond. There was no particular position in the .bank, such as that of book-keeper, referred to in the condition of this bond, .as there was in the Case of Conkling. In his case it is expressly stated that he has been appointed as book-keeper, and the condition of the bond is that he shall faithfully fulfill the duties of such book-keeper, and shall also faithfully fulfill and discharge the duties of any other office, trust, or employment, .etc. In that case the minds of the parties were upon the office of bookkeeper, and: it was during his occupancy of that office that the condition of the bond applied, and when that office was vacated there was no condition to be broken. In the case at bar, however, the condition of the bond is for the fidelity of the principal as clerk, or in whatever capacity he might serve the bank,—not “and in whatever capacity he may serve the bank,” but “or;” thereby intending that the obligation should cover, not only the position as .clerk, but any other position in which he might serve the bank. In the Case of Conkling the additional duties were to be added to the original office; in the case at bar the new duties might be entirely distinct from the original .employment, as the .condition is in the disjunctive, and not in the conjunctive. Therefore even if, when the principal was appointed as teller, he was not to be still considered as a clerk in the bank, it would be within the condition of .the bond, and th.e intention of the obligors. This view is borne out by the
Macomber, J., concurs.