Opinion
August, 1902.
W.A. Sweetser, for motion.
George L. Rives, Corporation Counsel (Herman Stiefel, of counsel), opposed.
This is a motion to direct the city chamberlain to return to the defendant money deposited by him in lieu of an undertaking.
On March 26, 1902, the defendant was adjudged, for abandonment of his wife, to pay four ($4) dollars weekly for the support of his wife.
On the following day an appeal was taken and allowed upon the defendant giving a written undertaking in the sum of three hundred ($300) dollars to abide the order of the appellate court and to pay such costs as might be awarded against him. Thereafter in lieu of such undertaking the defendant deposited three hundred ($300) dollars in cash with the city chamberlain, and was thereupon discharged from custody.
Thereafter the appeal was duly heard and the judgment of the court below was duly affirmed. The defendant thereupon surrendered himself and, upon the motion of the corporation counsel and the consent of the defendant and his counsel, was committed pro forma, by the court. By such affirmance the judgment of the court below became the judgment of this, the appellate court, and the defendant now stands ordered to pay for one year four ($4) dollars a week for his wife's support. The money thus deposited stands in place of the defendant and is in effect a payment in advance of the entire sum. The money so deposited is the money of the defendant for all the purposes of the action or proceedings. People ex rel. Gilbert v. Laidlaw, 102 N.Y. 588.
While there may be no express statutory authority for making or receiving such cash deposit it seems to have been in the interest of justice and in avoidance of an unnecessary circuity of action to accept it and to apply it to the support of the wife as required by the judgment of the court. I shall not order its return.
The defendant should be discharge from custody therefore and the money applied to the support of the wife and the costs as adjudged, leaving the overplus only to be returned to the defendant.
Ordered accordingly.