
    (33 App. Div. 130.)
    LYMAN v. BROADWAY GARDEN HOTEL & CAFE CO. et al.
    (Supreme Court, Appellate Division, First Department.
    August 10, 1898.)
    Action on Bond—Joinder of Causes.
    In an action upon a bond given to secure a liquor-tax certificate, and binding the parties in a specified sum in case of any breach of the conditions, a complaint which avers a number of specific breaches nevertheless states but one cause of action for the recovery of the specified sum.
    Appeal from special term.
    Action by Henry H. Lyman, as commissioner, against the Broadway Garden Hotel & Café Company and another. From an order setting aside plaintiff’s complaint, and giving him leave to serve an amended complaint, stating separately and numbering what the court held to be several causes of actions, plaintiff appeals.
    Reversed.
    The complaint is upon a bond given to secure a liquor-tax certificate. The bond reads that the parties are held and firmly bound unto the people of the state of New York in the penal sum of $1,600. The condition is th.it, if the tax certificate is given unto the principal, he will not (to quote the precise language of the instrument), “while the business for which such tax certificate is given shall be carried on, suffer or permit any gambling to be done in the place designated by the tax certificate, in which the traffic in liquors is to be carried on, or in any yard, booth, or garden appertaining thereto or connected therewith, or suffer or permit said premises to become disorderly, and will not violate any of the provisions of the liquor tax law, or any act amendatory thereof or supplementary thereto; then this obi gation shall be void; otherwise it is to be and remain in full force and effect, to cover every violation of the liquor tax law, and all fines and penalties incurred or imposed thereunder. An action for the breach of any condition of this bond may be maintained without previous conviction or prosecution for violation of any provision of said liquor tax law.”
    Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, McLaughlin, and o’brien, jj. ■
    Royal R. Scott, for appellant.
    James R. Soley, for respondent Fidelity & Deposit Co. of Maryland.
   BARRETT, J.

But one cause of action is alleged in the complaint. That cause of action is upon a single instrument, to recover the sum named therein. The plaintiff has averred a number of specific breaches of the various conditions of this bond. These breaches, however, do not constitute separate causes of action. They are simply separate assignments of the specific breaches upon which judgment for the single sum is demanded. The defendant seems to think that the correctness of the order made below depends upon the question whether the amount in the bond is to be regarded as a penalty, or as liquidated damages. This view is erroneous. It matters not whether the recovery be limited to the damages sustained by the various breaches alleged, or whether the sum named in the bond be treated as liquidated damages. In either aspect the cause of action is single. The action must not be confused with one to recover statutory penalties. It is upon the surety’s contract to pay a specific sum of money. A right of action inures upon the breach of anv one of the conditions of the bond. The cause of action is the same upon the breach of all the conditions. The recovery may, it is true, be greater or less, dependent upon the proper view of the sum specified. With that question we have at present nothing to do. Whether it be a penalty, or liquidated damages, there is still but a single cause of action alleged in the complaint.

The order should therefore be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs. All concur.  