PEOPLE v. SCHWARZE.

(Supreme Court, Appellate Division, Second Department. May 7, 1915.) BAIL 79-CRIMINAL CASES-FORFEITURE-REDUCTION OF LIABILITY.

The financial condition of a surety on a forfeited $300 bail bond held not such as to practically pauperize him if compelled to pay the bond, and a reduction of liability to $150 was unauthorized.

[Ed. Note. For other cases, see Bail, Cent. Dig. §§ 350-369; Dec. Dig. ~79.]

Appeal from Kings County Court.

Action by the People of the State of New York against Frank Schwarze to forfeit a bail bond. From an order remitting a part of the liability on the bond, and from an order refusing to resettle the order, the People appeal. Reversed, and judgment on default reinstated.

Argued before JENKS, P. J., and THOMAS, STAPLETON, and RICH, JJ.

Harry G. Anderson, Asst. Dist. Atty., of Brooklyn (James C. Cropsey, Dist. Atty., and Hersey Egginton, Asst. Dist. Atty., both of Brooklyn, on the brief), for the People.

Matthew W. Carmel, of Brooklyn (Rufus L. Perry, of Brooklyn, on the brief), for respondent.

PER CURIAM. The defendant gave an undertaking in bail, and his principal defaulted within a few days. The defendant was not proceeded against until 1909, when judgment was entered upon his default in an action brought against him. Upon application to the County Court the judgment was reduced from $300 to $150, which was paid forthwith. The People appeal.

The defendant never produced the accused, and did not show that refusal to discharge liability would result in destitution in his family, deprivation of their support and education, and deprivation of his creditors. People v. Heit, 152 App. Div. 179, 136 N. Y. Supp. 651. See, also, Matter of Pellegrino, 152 App. Div. 482, 137 N. Y. Supp. 305, affirmed 207 N. Y. 770, 101 N. E. 1113. The margin between the present condition of the defendant and that required by the rule indicated in People v. Heit, supra, is not so narrow as to be measured, so to speak, by $150. The condition of the defendant, as revealed by his examination in supplemental proceedings, justifies a more optimistic. view than that taken by him, and does not justify his conclusion that the payment of the $300 would "practically pauperize" the defendant. He keeps a shop for the sale of liquor at retail. He is possessed of real estate, although it is true that it is incumbered. But his debts amounted to less than $450, exclusive of a payment due the brewery of $900, and of $3,000 which he owes to his wife on a debt of 12 years' standing. Within 60 days of his examination he had paid out upon two notes, and for beer, ale, and milk, $646.

In passing upon such applications, the court should remember that there is a principle involved beyond that of clemency to the bondsman. Justice may be defeated by the escape of the principal, and, if it is clearly understood that the bondsman will be held rigidly accountable for the escape, the administration of the criminal law will be promoted. The order of the County Court of Kings County is reversed, and the judgment is reinstated. Due credit should be given for the payment of the $150 as on account of the judgment.

PEOPLE ex rel. WARD v. HEGEMAN, County Treasurer, et al. (Supreme Court, Appellate Division, Second Department. May 7, 1915.) INTOXICATING LIQUORS

TY COURT.

76-LICENSES-CERTIORARI-JURISDICTION OF COUN

Under Liquor Tax Law (Consol. Laws, c. 34) § 27, subd. 1, providing for the issuance of a writ of certiorari by a county judge on application for a liquor tax certificate, an order on a petition for a writ of certiorari, addressed to the County Court, entitled at a Special Term of the County Court, stating that the judge of that county was "present," providing that the court in its discretion dispensed with notice of application therefor, and requiring return to the County Court that it might act thereon, made at a Special Term of the County Court, reciting the action of "the court," marked "Enter" by the county judge and certified by the clerk "Granted," was not an order by the county judge, but an order of the County Court, and hence beyond its jurisdiction.

[Ed. Note. For other cases, see Intoxicating Liquors, Cent. Dig. § 80; Dec. Dig. 76.]

Appeal from Nassau County Court.

Certiorari by the People, on the relation of Elizabeth Ward, against Daniel J. Hegeman, as County Treasurer of Nassau County, and William W. Farley, as State Commissioner of Excise, etc., to compel the granting of a liquor tax certificate. From an order of the County Court, defendants appeal. Order reversed, and writ dismissed.

Argued before JENKS, P. J., and THOMAS, STAPLETON, and RICH, JJ.

Charles R. O'Connor, of Hobart (Louis M. King, of Albany, on the brief), for appellants.

George E. Stoddart, of Mineola, for respondent.

JENKS, P. J. This is an appeal from an order that reverses the ruling and decision of the county treasurer of Nassau county, grants the application of the relator for the issuance of a liquor tax certificate, and requires the county treasurer, acting as deputy excise commissioner of the state, to issue such certificate.

The proceeding was begun by petition for a writ of certiorari. It was addressed to the honorable County Court of Nassau county. The order for the writ is entitled at a Special Term of the County Court held in and for the county of Nassau, with the statement that the county judge of that county was "present," and contains the provi

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

sion that the court hereby in its discretion dispenses with notice of application for the writ. The writ requires return to the County Court of the county of Nassau at a Special Term, that the action of the county treasurer may be reviewed, and that "this court" (i. e., the County Court) may act thereon. The order appealed from is made at a Special Term of the County Court, held in and for the county of Nassau at the county courthouse, whereat the county judge was "present," recites the action of "the court" in the matter, was marked "Enter" by the county judge, and the clerk thereupon certifies that it was "Granted."

I think that this order must be regarded as one granted by the County Court, and not made by the county judge (People ex rel. Cecere v. Slocum, 161 App. Div. 733, 146 N. Y. Supp. 556), and that therefore, upon the authority of this case, it must be reversed. There is a distinction that must be regarded as substantial between the statutory powers vested in a court and conferred upon a judge.

The order of the County Court of Nassau County is reversed, with $10 costs and disbursements, and the writ of certiorari is dismissed. All concur.

D'AMBROSIO et al. v. RUSSO et al.

(Supreme Court, Appellate Term, First Department. May 13, 1915.) 1. SALES 391-CONSIDERATION FOR CONTRACT-MUTUAL AGREEMENTS. If, as claimed, it was a provision of a contract for the sale of a business that a down payment might be retained by the sellers in case of the buyer's failure to pay the balance of the purchase price, there was ample consideration in the mutual agreements of the parties for such provision, whether or not the sum retained might be regarded technically as liquidated damages.

[Ed. Note. For other cases, see Sales, Cent. Dig. §§ 1110-1127; Dec. Dig. 391.]

2. SALES 391-DEFAULT BY BUYER-RECOVERY OF DOWN PAYMENT.

If, as claimed by the sellers of a business, the buyers were in default with respect to the payment of a balance due on the purchase price, they had no standing to recover a down payment, whether or not under the contract the sellers were entitled to retain such payment as liquidated damages.

[Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 110-127; Dec. Dig. 391.]

Appeal from Municipal Court, Borough of Manhattan, First District.

Action by Tomaso D'Ambrosio and another against Francesco Russo and another. From a judgment for plaintiffs, after a trial by a judge without a jury, defendants appeals. Reversed, and new trial granted.

Argued April term, 1915, before GUY, BIJUR, and PENDLETON, JJ.

Fischer, Wolf & Villamena (George Wolf, of Brooklyn, of counsel), for appellants.

Charles M. Kiefer, of New York City, for respondents.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

BIJUR, J. Plaintiffs claim to have made an agreement with defendants for the purchase of an ice business, upon the following terms: The price was fixed, and plaintiffs deposited with defendants $200 on account. Plaintiffs were to be permitted to go into possession at once, and remain eight days, and, if dissatisfied, they might withdraw from the transaction and receive back their $200, for which this action is brought. Defendants, on the other hand, claim that the sale was absolute, with a payment of $200 down and the balance to be paid a week thereafter, with a provision that, if the balance should not be so paid, the defendants might retain the $200 as "liquidated damages."

Plaintiffs' proofs did not quite accord with the complaint, being to the effect, not that plaintiffs might withdraw from the transaction if they did not like the business, but that defendants had made certain. representations as to the earning capacity of the business and as to their possession of a written lease of the premises, which plaintiffs claim to be untrue. Defendants admitted the making of a representation of the quantity of business done, denied the other representations, and offered to prove that the representation made by them has been shown to be true. They also gave proof of a contract according to the terms set out in their answer. In all these points they were substantially corroborated by two disinterested witnesses.

[1] As a question of fact the record as it stands discloses a strong preponderance in favor of defendants. When defendants' counsel, at the close of the entire case, moved to dismiss the complaint on the ground among others that it appeared affirmatively that plaintiffs had not lived up to the conditions of the bargain and that they themselves had agreed that defendants could keep the $200 as “liquidated damages" the learned judge below remarked:

"There is no consideration for such an agreement. plaintiffs for $200."

Judgment for the

In this the court was in error. Without entering upon a consideration of the question whether this sum might be regarded technically as "liquidated damages," there was ample consideration in the mutual agreements of the parties for any of the terms agreed to by either side.

[2] But apart from that, if defendants are to be believed, plaintiffs, being in default in the performance of their agreement as a whole, have no standing to recover a part payment on account thereof.

Judgment reversed, and new trial granted, with costs to appellant to abide the event. All concur.

JAQUISH v. KELLY et al.

(Supreme Court, Appellate Division, Third Department. May 5, 1915.) OF ORDER-PAYMENT

161-CONDITIONS-CONSTRUCTION

OF

NEW TRIAL COSTS AND EXPENSES. Where defendant was adjudged guilty of a civil contempt for failure to comply with a judgment, and was required to pay a fine of $150 and plaintiff's costs and expenses in the contempt proceeding, $703, a subFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

sequent order granting a new trial of the action in which the judgment was recovered, on the ground of newly discovered evidence, on the payment of the costs of the action to that date, required defendant to pay, not only the taxable costs entered in the action itself, but the $703 adjudged to plaintiff as costs in the contempt proceeding, reduced by the $150 fine or damages which had been previously paid to plaintiff.

[Ed. Note.-For other cases, see New Trial, Cent. Dig. §§ 321-323; Dec. Dig. 161.]

Appeal from Special Term, Delaware County.

Action by George J. Jaquish against George W. Kelly and others. From an order restraining proceedings to enforce an order adjudging the defendants guilty of civil contempt, plaintiff appeals. Modified and affirmed.

Argued before SMITH, P. J., and KELLOGG, LYON, HOWARD, and WOODWARD, JJ.

O'Connor & O'Connor, of Hobart (Charles R. O'Connor, of Hobart, of counsel), for appellant.

A. G. Patterson, of Walton, for respondents.

JOHN M. KELLOGG, J. The defendants were adjudged in contempt for failing to comply with the provisions of a judgment of the Supreme Court, and were required to pay a fine of $150 and $703.61, plaintiff's costs and expenses.

By order, dated August 18, 1914, the court granted a new trial to the defendants of the action in which the judgment was recovered; the order providing that the judgment "be and hereby is vacated and set aside, and that a new trial thereof be had, and that the defendants pay all the costs and disbursements of said action to date, together with $10 costs." The order was granted upon the ground of newlydiscovered evidence, and was evidently considered a favor to the defendants, as it imposed upon them the costs of the action and of the motion. The costs taxed in the action and entered in the judgment have been paid. The costs granted by the order adjudging defendants guilty of civil contempt have not been paid.

I think the fair interpretation of the order granting the new trial is that the defendants are to pay all costs and disbursements which have been made in the litigation up to that time, not only the taxable costs entered in the judgment itself, but the $703.61 adjudged to the plaintiff as costs in the contempt proceedings. Evidently the court did not intend to vacate the judgment and grant a new trial unless the costs were paid, and the order should be interpreted as conditioned upon the payment of the costs. The order finding the defendants guilty of contempt remains in full force until the costs are paid, and when the costs are fully paid then the judgment is of no further force, and we may assume the contempt proceedings fall with it. In granting the defendants a new trial upon the ground of newly-discovered evidence, and imposing upon them the costs and disbursements, the court did not intend to relieve them of the costs imposed by the contempt order. The judgment gave the plaintiff $150 damages and the costs, and it was paid soon after its recovery. If the defendants comply with the