
    John E. Breichbiel, as Overseer of the Poor of Orangetown, App’lt, v. George H. Powles and Ella T. Powles, Resp’ts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 2, 1891.)
    
    1. Disorderly persons—Recovery on bond.
    Defendant Powles was adjudged a disorderly person and ordered to give a bond to indemnify the town against his wife and children becoming chargeable upon the public. The bond provided they should not become a charge upon the public for one year, or if they did. the sureties agreed to pay $250 to the town. Feld, that the bond was one of indemnity, and that only the amount actually paid out for the support of the wife and children could be recovered thereon.
    2. Appeal—New trial.
    An order of county court granting a motion on the judge’s minutes to set aside a verdict upon exceptions and because the verdict is excessive and contrary to law and the evidence, is not appealable.
    Appeal from order of the county court setting aside a verdict and granting a new trial.
    The following is the opinion rendered by the county judge:
    Weiant, J.—This action was brought to recover the amount of an undertaking given by the defendant, George H. Powles, upon an adjudication that he was a disorderly person under § 899 of the Code of Criminal Procedure.
    The undertaking was in the sum of $250 “ that the wife and children of said George H. Powles will not for one year become a charge upon the public, or in case of a failure of such undertaking we, the said George H. Powles and Ella T. Powles, will nay to the town of Orangetown the said sum of $250.”
    A verdict was rendered for the full amount upon a direction of the court if the finding was that the plaintiff had proven certain facts constituting a breach of the undertaking. A motion for a new trial was made by the defendant and I am called upon to determine that motion.
    Two questions are presented for determination.
    
      First. Whether or not the undertaking was given in conformity to the requirements of the statute. Second. If so, then whether a recovery for the whole amount of the undertaking was legal, or should the sum have been limited to the amount sufficient to indemnify the town for the expense that it had incurred in furnishing support to the wife and children.
    Section 901 of the Code of Criminal Procedure provides that if a magistrate is satisfied that the defendant is a disorderly person he may require him to give security by written undertaking, with one or more sureties, to the following effect:
    1st. If he be a person described in the first or second subdivision of § 899, that he will support his wife and children, and will indemnify the county, city, village or town against their becoming in one year chargeable upon the public.
    
    2d. “In all other cases that he will be of good behavior for the space of one year;” or, “ that the sureties will pay the sum mentioned in the undertaking, which must be fixed by the magistrate.” How, it appears from a comparison of the language of the undertaking with the words of the statute that the words “ that he will support his wife and children ” are omitted from the undertaking. It is claimed that this is not a substantial departure from the statute, and if so, that as the undertaking complies with a part of the condition the defendant has no reason to complain, as it narrows the ground of liability and it entitles the plaintiff to recover only upon his proving a breach as to that particular part as to indemnity of the town against the wife and children becoming a charge upon the public. I very much doubt the right of the magistrate to take an undertaking embodying but a portion of the statutory obligation; it is not like that of an alternative condition, as in the case of the People v. Tilton, 13 Wend., 597, nor of a divisible condition, as, in Perkins v. Stimmel, 42 Hun, 520; 4 N. Y. State Rep., 459.
    Especially is that true in this case, for a part of the same statute regulating the prosecution of disorderly persons, § 904 of the Code of Criminal Procedure, provides what shall constitute a forfeiture of such undertaking, and if a portion of the condition is to be omitted and one portion is only inserted the statute prescribing what shall constitute a forfeiture, it is apparent, cannot be made applicable. The acts therein specified as constitu'ting a forfeiture of an undertaking contemplate and must mean one wherein the conditions prescribed by the statute is contained. But what shall constitute a breach of the undertaking contained in this case a part only of the condition ? Will the commission of either of the acts specified in subds. 1 and 2 of § 899 constitute a forfeiture of an undertaking conditioned only that the sureties will indemnify against the wife and children becoming a public charge ? It is doubtful. Would such a construction be in accord with the undertaking that the sureties executed ? One would scarcely so understand. A man might well “ abandon his wife and children without adequate support or leave them in danger of becoming a burden upon the public or neglect to provide for them according to his means,” or “threaten to run away and leaving his wife or children a burden upon the public,” either of which, according to § 904 of the Code of Criminal Procedure, would constitute a forfeiture if the undertaking conformed to the statute, and would probably be a breach of that part of the condition that he will support his wife and children, but it seems quite clear that neither would constitute a breach of that part only of the condition that he “ will indemnify the county, city, village or town against their becoming within one year chargeable upon the public.” Nor do I think that this is a case where it may be contended that because the undertaking was less onerous than that which the statute prescribes, that it may be held valid. The cases so holding are those wherein the departure from the language of the statute has not been substantial and no further burdens have been imposed. Bulkley v. Boyce, 48 Hun, 259; 17 N. Y. State Rep., 940. No officer shall take a security by color of his office in any other case or manner than such as are provided by law. 3 R. S. (7th ed.), 2374, § 59 ; Commissioners of Charities v. O'Rourk, 33 Hun, 349; Toles v. Adee, 84 N. Y., 222; Cook v. Freudenthal, 80 id., 202.
    The purpose of this statute was to make the duty of the officer and the right of the parties certain and plain and to prevent oppression or abuse of authority by disabling public officers from imposing terms or making contracts as conditions of official action except such as were sanctioned either by the statute or the common law. Cook v. Freudenthal, 80 N. Y., 208. What right had this magistrate to dispense with a condition the statute required him to impose in the undertaking as a condition of discharging the defendant?
    In Winter v. Kinney, 1 N. Y., 368, cited in Cook v. Freudenthal, supra, Wright, J., says: “Where a person is in custody and the officer, instead of taking the obligation for his release specifically provided by statute, takes one of his own volition more or less onerous to the prisoner, he asserts by virtue of his office an illegal claim or right or authority to take it”
    In the case of Toles v. Adee, supra, Judge Andrews, writing the opinion, says at page 234, “That public policy requires that officers armed with bailable process for the arrest of defendant should, in taking bonds or other securities for their enlargement, be held to a strict compliance with the statutory requirements, neither accepting less nor demanding more than the law prescribes.”
    The views above expressed, it seems to me, receive additional force if, as it seems, an undertaking, if executed in conformity to the statute, is to be construed as penal and the forfeiture is of the whole amount of the undertaking. People v. Pettit, 3 Hun, 416; People ex rel Van Aken v. Millham, 100 N. Y., 273; People v. Tilton, 13Wend., 597.
    The motion for a new trial is, therefore, granted, unless the plaintiff stipulates that the verdict may be reduced to twenty-eight dollars, the amount of the expense incurred by the plaintiff in behalf of Orangetown, as it may be that the undertaking might stand as an indemnity; if he so stipulates the motion is denied.
    
      A. A. Demarest, for app’lt; Garrett Z. Snider, for resp’ts.
   Pratt, J.

—The bond in suit was one of indemnity. Such is the plain import of the language, which cannot be extended by the court to meet any supposed requirement of the statute. A surety cannot be held to a larger responsibility than the language of the bond requires.

The county judge was, therefore, right in requiring the plaintiff to stipulate to reduce the verdict to twenty-eight dollars as a condition upon which the verdict might stand. The plaintiff not stipulating, the verdict was properly set aside.

But there is a more serious difficulty in appellant’s way. This is an appeal from an order of the county court granting a motion “ made upon the judge's minutes to set aside a verdict upon exceptions, and because the said verdict was excessive and was contrary to law and the evidence.”

Under the authority of the case of Hand v. Dorchester, 43 Hun, 33, this case cannot be reviewed by the general term of this court, and it should be dismissed, without costs, for the reasons stated in that case by Mr. Justice Follett

It is so ordered.

Barnard, P. J., and Dykman, J., concur.  