The recovery was for the sum of $5,000, upon a bond executed by the defendants, for the faithful performance of his duties and trusts by Richard H. Cornwell, as a bookkeeper in the employment of the plaintiff, or, if he should be appointed to any other office, duty or employment by the president and directors of the bank, that- he should also faithfully perform the duties assigned to him and trusts reposed in him, and, also, all such other duties as might from time to time be assigned him, or undertaken by him in relation to the *295bank. It was alleged in the complaint, and proved upon the trial, that he had appropriated to his own nse securities held by the bank to a larger amount than the penalty of the bond, but the defendants resisted their liability to pay upon the recital in the bond that their principal, Cornwell, had been appointed a bookkeeper of the bank and was afterwards promoted to a more responsible position. This appointment was urged as an act so far preceding the execution and delivery of the bond as to prevent it from operating as a consideration supporting their liability upon it. But it is to be inferred from the language of the instrument, and the evidence in the case, that the execution and delivery of the bond was required to render the appointment complete and effectual. Until that .should be done the appointment would be provisional only, not binding the bank to continue it or to accept the services or employ, ment of Cornwell, the principal in the bond. The recital stated no more than what had previously taken place, that Cornwell had been selected as a bookkeeper of the bank. And the acts of the parties in giving the bond support the presumption that the appointment was made to take effect upon its execution, as a condition; and it first became complete by the delivery of the bond to the plaintiff. Under the circumstances, this recital cannot be so construed as to deprive the bond of a legal consideration. It is to be considered-on the contrary, as evincing the fact to be that the appointment had been made on the understanding and condition that it was to be followed by and dependent upon the execution and delivery of the bond. And that supplied a sufficient consideration for its support as a legal obligation, and distinguished this case from those which have been cited by the counsel for the appellant in support of this position.
It appeared by the evidence taken at the trial that Cornwell, the principal in the bond, performed other duties for the bank during his continuance in its employment. Those duties, in great part, related to the assistance of the cashier and the assistant cashier, in their department of the business of the bank. These duties are described by one of the witnesses as being those of a loan clerk in receiving, caring for and exchanging securities placed in the custody of the bank. But while these duties were performed by Cornwell, the evidence of the president of the bank was that his appointment *296as bookkeeper was at no time changed, bnt it continued while he remained in the service of the bank, and that these were additional duties or services required from him while he still sustained his appointment as bookkeeper and the relations arising out of or appertaining to that position to the bank. And in submitting the case to the jury, the court directed them that if Cornwell continued in the employment of the bank as bookkeeper, even if other duties were superadded to that employment, the defendants would be liable on the bond. But if he had been virtually removed from the position of bookkeeper and put into another position, which enhanced the liability of the defendants on their bond, then they were entitled to a verdict.
This direction presented the case to'the jury as the law applicable to it has become settled, for the hank had the right to exact the performance of- these duties from the bookkeeper in addition to those appertaining to his services in that capacity, whenever that became necessary, and he was willing to render the service to the bank. The recital contained, in the bond did not forbid this employment, while the condition expressly provided for and permitted it. And where that is the language of the instrument, it has been held that the performance of the additional services, as long as the principal still continues to hold the appointment intended to be secured by the bond, will not discharge the sureties from liability for his' default. (Rochester City B’k v. Elwood, 21 N. Y., 88; Nat. Mechanics Banking Ass’n v. Conkling, 90 id., 116.) The bond in the last case was very much like that upon which this action was brought, and the court concluded by its decision that “ the sureties undertook for the fidelity of their principal only while he was bookkeeper; but if while bookkeeper the duties of any other office, trust or employment relating to the business of the bank were assigned to him, their obligation was to extend to the discharge of those duties. While bookkeeper he might temporarily act as teller or discharge the duties of any other officer during his temporary illness or absence, or he might -discharge any other special duty assigned to him, and while he was thus engaged the bank was to have the protection of the bond.” (Id., 121.) And this principle was again declared and maintained in Mayor, etc., v. Kelly (98 N. Y., 461), where it was repeated that “ the sureties are never dis*297charged by the imposition of new duties which are distinct and separable from those protected by the guaranty, unless such new employment renders impossible, or materially hinders, or impedes the proper and just performance of the duties guaranteed. Where the new employment is separate and distinct, and in no respect essentially interferes with the duty covered by the bond, the imposition of such added duty is wholly a matter between the employer and servant with which the sureties have no concern.” (Id., 470.)-And this is also sanctioned by Rollstone B'k v. Carleton (136 Mass., 226).
As a matter of evidence what the principal was called upon to do outside of his duties as bookkeeper, did not supercede his appointment or employment in that capacity, but was incidentally required in the course of the business of the bank. And it was no defense to the sureties in the bond that it brought him more directly in contact with the money and securities of the bank, then he would have been if he had not been acting in these other capacities. As long as he still remained the bookkeeper, as the evidence tended to prove that he did, and the jury must have found the fact to be so before they could render a verdict in favor of the plaintiff, his defalcations were protected by the bond and the defendants as his sureties were liable.
Questions were asked during the trial whose purpose was to describe the duties and services of a bookkeeper in a bank, which the court did not permit to be answered. These questions presented the inquiries whether ordinary book-keepers had access to the negotiable securities in the custody of the bank, and what were the duties of an assistant cashier or loan clerk, and what were the services of the principal in the bond ’when he first entered into the ■employment of the bankj and what difference there was in the duties of the bookkeeper and those of a loan clerk or assistant ■cashier, and whether” there was any acceptation among bankers as to the duties of bookkeepers in banks, whether Mr. Cornwell in handling securities or dealing with the securities of the bank performed duties ordinarily performed by assistant cashiers, and whether what was done by him was not outside of the ordinary ■duties of a bookkeeper, and whether it was out of his ordinary *298«duties to handle the securities of the bank, and whether that was not a peculiar and special duty which devolved upon some person occupying a higher position than that of bookkeeper, and what were the ordinary duties of a bookkeeper. These questions under the legal rules applicable to the case, contemplated answers that were entirely immaterial. For if Cornwell the principal in the bond, still continued to hold his position under his appointment of bookkeeper, and discharged the other duties mentioned by the witnesses without vacating that position or employment, to aid and assist in the management of the general business of the bank, the defendants would not be relieved from liability by reason of the performance of any of these additional duties. And the evidence, if it had been received, would not have changed the aspect of the case in either of these respects. One of the witnesses was inquired of whether he himself gave an additional bond as he was advanced from one position to another, and one of the defendants was inquired of whether he knew the duties Mr. Cornwell was performing in this bank after he had executed the bond in this case. If these questions had been answered, neither of them, nor any of the others which were excluded, could have changed the legal aspect of the controversy. It was governed by the rules and principles which have already been mentioned, supported by the authorities of the highest court in the State. The case'was carefully as well as comprehensibly submitted to the jury, and their verdict is supported by the evidence which was produced before them during the trial. No material error intervened upon which this court would be justified in interfering with the result, and both the judgment and order should be affirmed.