First Department, March, 1921. [Vol. 195. court without a jury, and that the pleadings might be amended in so far as the court found necessary for the disposition of the issues between the parties, either at law or in equity, except there was reserved to the plaintiff the right to sue the defendant in the Ohio courts for neglect of duty. Thereupon the trial court held that the agreement of June 2, 1899, did not constitute the defendant a guarantor of the payment of $200 a month to the plaintiff, and that it merely constituted the defendant a trustee of the plaintiff and not a guarantor, and thereupon the court directed an accounting on the part of the defendant of its acts as trustee. The defendant filed an account in the action showing that its disbursements and charges in behalf of the trust aggregated $62,660.62, and that its total receipts were $55,853.84. The receipts were made up of the proceeds from the sale of the Euclid Heights residential property at foreclosure and moneys paid to the defendant directly by John H. Brown, plaintiff's husband, during the years 1911 to 1914. The expenses with which the trustee credited itself consisted of expense incurred in the first action brought by the plaintiff to secure her monthly installments, the expense of the defendant in the present action, the cost of the foreclosure of defendant's lien upon the property conveyed to it in trust, moneys claimed to have been expended by the defendant with reference to acquiring title to the so-called "barn lot" adjacent to the trust property, advancements made to the plaintiff, including the amount of the judgment awarded her in the first New York action, taxes paid upon the property, insurance, interest on advances made, compounded semi-annually to 1908, and quarterly thereafter, fees of the trustee from 1899 to 1911, compensation of the trustee from 1911 to 1915, and some miscellaneous items. The total amount with which the defendant credited itself being $62,660.62, as above stated. To the account thus filed the plaintiff objected, upon the ground that the items with which the trustee had credited itself should not be allowed because had the trustee used due care and diligence in the management of the trust it could have kept the trust fund intact; and, second, that as to items aggregating $26,606.56 with which the trustee credited itself in such account, the same were improper charges against the App. Div.] First Department, March, 1921. trust fund. These claimed improper charges consisted of expenses incurred by the trustee in the first New York action, the expenses of the present action, the expenditure in respect to the barn lot, the compound interest items amounting to $12,821.33, and the compensation charged by the trustee, amounting to $3,075. The plaintiff asked that the account be surcharged with the difference between the price received for the trust property in 1915, $34,000, and the amount that would have been received therefor had the trustee performed its duty and sold the property within a reasonable time after it commenced to depreciate in 1907, and that said account also be surcharged with a sum sufficient to offset any credits that might be allowed to the trustee because the trustee could and should have kept the trust fund intact, either by obtaining income from the trust property or by obtaining reimbursement from plaintiff's husband in any one or more of several ways open to it. By the judgment of the court below, from which both parties have appealed, the court assumed that the $21,771.48 received from plaintiff's husband directly after the entry of the foreclosure decree in December, 1911, might have been collected from him and applied as accumulated monthly payments to plaintiff and other necessary expenses of the trust becoming due subsequent to December 21, 1903, when the trust company first commenced to make advancements. The court held that had this been done there would have been no unpaid charges against the trust property prior to July 28, 1911, when plaintiff's husband would have defaulted. The court then allowed as a reasonable time within which to take suitable action to protect the plaintiff's interests the defendant should be allowed a year and a half, and from the expiration of said period, January 28, 1913, the court charged the defendant with interest on the $34,000 received from the sale of the property in 1915 at four per cent, and allowed the defendant to deduct therefrom all advances made by it subsequent to June 28, 1911, excluding, however, from such allowances the amount of the depreciation of the barn lot subsequent to its transfer to the trust company in 1908. Upon this basis the court found that on the date of the entry of judgment herein, November 24, 1919, the defendant should have had in its hands First Department, March 1921. [Vol. 195. of said trust funds, $25,832.57. From this amount the court directed that it pay the plaintiff the arrears due her from October 1, 1915, to June 1, 1919, together with interest amounting to $9,943.27, and that from the balance the defendant should pay the plaintiff $200 a month from income and so much of the principal as might be necessary to make such monthly payments until such funds should be exhausted. Both parties appealed from the judgment entered upon such decision by the trial court. The plaintiff's appeal is upon the ground that the trial court improperly held that under the terms of the contract sued upon defendant's liability was not that of a guarantor but merely that of a trustee for the plaintiff, and that even assuming that the contract be construed as one of trust merely for the benefit of the plaintiff, the provision made by the court was inadequate. The defendant appeals from each and every part of the judgment and from the order denying its motion to reopen the trial. It seems to me that the learned trial court was clearly in error in its construction of the tripartite agreement between the parties. As I interpret that agreement it provided primarily in consideration of plaintiff's releasing all dower, alimony, claim for support and maintenance, and all other rights accruing to her as the wife of John H. Brown, that the latter agreed to pay to her $200 per month during the remainder of her life or until she should remarry and in the event of her remarriage that he should pay her during the remainder of her natural life the sum of $100 per month. This obligation on the part of the husband was the primary office of the agreement. To secure to plaintiff faithful performance on the part of her husband, the defendant agreed that in the event of the husband's failure to pay to the plaintiff the said monthly payments therein by the contract provided, it would, upon demand of the plaintiff, advance to her the said monthly payments. Throughout the agreement the only monthly payments mentioned are those dependent upon and limited by the natural life of the plaintiff. The defendant does not contract to pay these monthly payments so long as the security which it received remained intact, but manifestly by the agreement, without any limitation whatever save the lifetime of the plain App. Div.] First Department, March, 1921. tiff, agreed, upon her husband's default and upon her demand, to pay her said monthly installments. I am unable to see how this court, having already construed the contract in question to be that of an absolute guaranty and having affirmed the order of the Special Term granting plaintiff's motion for judgment upon the pleadings in an action at law for the amount of installments due thereon, can, in the present action, wherein the plaintiff asks for the same form of relief as that demanded in the former action, hold otherwise than that the plaintiff is entitled to judgment at law herein. It seems to me this court is bound by its former decision. (Brown v. Cleveland Trust Co., 139 App. Div. 932.) At the time when the case reached this court precisely the same claims were presented as confront us now, and in granting plaintiff's motion for judgment on the pleadings this court necessarily held that there was a personal obligation on the part of the defendant to pay said installments under said contract. Not only that, but the defendant acquiesced in such decision, paid up the amount of the judgment awarded in plaintiff's favor, and thereafter, for the period of five years, without objection or question, continued to pay the plaintiff her said installments. Such action on the part of the parties was a practical construction and interpretation of the contract and was entirely contrary to the present position of the defendant that it was acting simply as a trustee for the plaintiff. As was said in Insurance Co. v. Dutcher (95 U. S. 269, 273): “There is no surer way to find out what parties meant than to see what they have done." And in Nicoll v. Sands (131 N. Y. 19, 24) it was said: "The practical construction put upon a contract by the parties to it, is sometimes almost conclusive as to its meaning." In City of New York v. New York City R. Co. (193 N. Y. 548) it was said: "When the parties to a contract of doubtful meaning, guided by self-interest, enforce it for a long time by a consistent and uniform course of conduct, so as to give it a practical meaning, the courts will treat it as having that meaning, even if as an original proposition they might have given it a different one." (See, also, Carthage Tissue Paper Mills v. Village of Carthage, 200 N. Y. 1, 14.) For ten years after the execution of said agreement the defendant and all the parties seem not to have considered that First Department, March, 1921. [Vol. 195. the said defendant was acting as trustee. It was only after the commencement of the action by the plaintiff against the defendant in 1909 that the defendant seems to have evolved the notion that it was acting as trustee for the plaintiff. Originally its books showed that the advancements were made as "Trustee for John H. Brown," but at some time later on were altered by the addition of the words, "and Sallie S. Brown." Moreover, the instrument itself is replete with evidence that parties at the time regarded the obligation of the defendant as a personal one enduring throughout the lifetime of the plaintiff. It strikes me that so far as the trust agreement was concerned whereby the plaintiff's husband conveyed to the defendant his residential real estate in Cleveland, the transaction was entirely between the husband and the defendant and was merely for the purpose of indemnifying the defendant for any payments which it might be compelled to make to the plaintiff under the terms of the agreement. The plaintiff was in nowise concerned as to any of the details with reference to the security thus held by the defendant. All that the plaintiff was concerned in was that she should receive from some one, either from her husband, who was primarily liable, or from his guarantor, the defendant, her monthly installments during the term of her natural life. The instrument itself uses the words "trust " and " trustee " only in connection with the agreement of plaintiff's husband to indemnify the defendant. The defendant is known in the instrument as an individual and not as a trustee and it executed the instrument in the same manner, and throughout the instrument it appears that it is obligated individually and not as trustee. At no time was the plaintiff given any control over the trust property or the income derived therefrom. The trust was entirely between the defendant and plaintiff's husband, the principal obligor. By the terms of the agreement the plaintiff was in nowise interested in the sale of the property by the trust company, but that was dependent entirely on the consent of plaintiff's husband, upon thirty days' written notice under specified conditions. It is true the agreement provided as a part of the indemnification that plaintiff's husband should pay all taxes and insurance and keep the property in repair, and in default thereof the defendant was authorized |