
    Bernhart Schmidt, Respondent, v. William Livingston et al., Defendants; John G. Schwartz, Surety and Appellant.
    (City Court of New York,
    General Term,
    February, 1897.)
    1. Undertaking — Examination of surety.
    It is the duty of one who examines a proposed surety upon an undertaking oh appeal to put down all the answers, whether they are satisfactory or not, or impress him favorably- or otherwise.
    
      2. Contempt — Justification of surety.
    The question whether a surety was guilty of contempt in swearing falsely as to his property on justification depends upon the correctness of his statements at the timé of the examination and his honesty and good faith in swearing to the values, and is not affected by a subsequent depreciation in the value of the property or his final disposition'.thereof.
    Appeal by John G. Schwartz' from an order adjudging him guilty of contempt in giving false answers upon justification as a. surety upon an undertaking on appeal.
    Albert I. She, for appellant.
    Ten Eyck & Remington, for respondent,
   McCarthy, J.

The important questions to be determined here are whether, on June 19, 1895, the date of the signing by Schwartz of the undertaking on appeal in the case of Schmidt against Livingston and McLeod, and also whether on September 4, 1895, the time of the justification and examination of said Schwartz as to his sufficiency, he was worth the sum of $1,000, as required by the statute, or that he swore falséíy, and was thus" guilty of contempt of court.

The appellant claims that a Mr. Martin E. Bourke conducted the examination of the plaintiff and transcribed same, but failed to commit to the paper certain essential facts which are set forth in his affidavit.

Bourke denies all these statements, but, speaking, of the Ludwig Carved Moulding Company as follows, 'says: - “Nor did he state that the 125 shares of stock of -the Ludwig Oafved Moulding .Company that he owned were .worth,. as he then thought, from twénty-five hundred to'three- thousand dollars, but, ón the contrary, deponent says that said Schwartz at that time positively refused to place any- value -upon, the said shares of stock in said Ludwig Carved Moulding Co., and left the impression- Upon deponent’s mind that he considered .them practically worthless, and, therefore, deponent did not say anything about their value.”

' But' in the examination on the sufficiency- Bourke examined the appellant fully as to the Ludwig Carved Moulding Company, ■ learned that it was a Hew Jersey corporation, where, it did business, the appellant’s official position in the same and the number of the shares of stock; this is. all' that appears in- such examination.

Yet the examination' is supposed to contain all that occurred between them.

But Bourke admits in his affidavit that.- it does not, and says the other portion is left out because, as he says, “ of his impression that it was not" necessary and that the stock was practically worthless.” - '

We. think it likely, that Bourke must have asked -if the appellant had any other stock and must have been informed in the manner claimed by the appellant.

It was the duty of Bourke, whether the answers were satisfactory or not or impressed him favorably, to put them down, as after all the judge was to" say at the end-whether- the surety was sufficient or not.

In an experience of some years, I have -found it father the rule than otherwise, where an examination is conducted not in the presence of the court (the fact here), to pen down , only such, answers of the witness as are satisfactory. to the examiner- or. sufficient to their present needs, and this without any intent to do a wrong, nor do I thing that Mr. Bourke intended to do any wrong by omitting, the statements made by- the appellant.

Doubt now having been cast upon what Bourke put down on the papers, we are inclined to think-that the value of the foregoing" stock was mentioned at between $2,500 and $3,000, and that the' total value would be at $17,500; deducting the $15,000 indebtedness would leave accordingly, over and above bis debts and liabilities, the sum of $2,500..

The application to punish the appellant for a contempt is moved, however, on the alleged disclosures under the examination in supplementary proceedings in the action in the Supreme Court of Schmidt against Livingston and iSchwartz, where the said Schwartz in September, 1896, then, swearing, said he had transferred his interest in the lease on Fifth street, and that it was only worth then (September 30, 1896) about ten thousand ($10,000) dollars, which was on account of hard times, while in September, 1895, he swore it was worth fifteen thousand ($15,000) dollars.

This may have been at each time an honest estimate of the actual value of this leasehold.

The sale of the stock in 1896 to P. A.- Mahony, at $5 per share, would not alter the fact that in 1895 they were reasonably, worth $2,500, or $20 per share, and if we believe the statement of Schwartz that he told Bourke that he owned twenty-five shares of the Mount Morris Building & Loan Association, which were worth about $1,000, and which he swears he sold in November, 1895, for $823, this surety would have been, in June and September, 1895, a good and sufficient surety under this undertaking.

The appellant Schwartz having put these various properties out of his reach since, does not alter the questions involved, as the question is not what he did with it after or its depreciated value since.

Were his statements at the time of the examination correct and did he honestly and in good faith swear to the values?

The onus is on the respondent to establish the falsity by a preponderance of evidence, and we think he has failed in this, as the. presumption against the commission of the crime is so strong as not to be overcome except by evidence of the highest degree.

Now, as perjury is a serious crime, which certainly can’t be determined by guesswork, the person charged is entitled to the benefit of every doubt.

We think, therefore, the respondent has failed to come within the rule according to the lines laid down, and the order must be reversed and the motion to punish for contempt denied, without costs, and without costs of this appeal.

Fitzsimosts and Ooitlan, JJ., concur.

Order reversed, without costs, and motion denied, without costs.  