for the refunding of that portion of the tax which is not earned at the time of such surrender; and section 13 directs that the moneys collected shall be turned over to the several funds within a short period, so that the officers who were directed to refund the moneys were without the funds to comply with the law. The excise department, to meet this situation, devised the system of rebate receipts, one of which was given to the plaintiff in this action; and the Legislature, in 1897, enacted that "All outstanding receipts, issued and given for liquor tax certificates, heretofore surrendered and canceled, shall also be paid in the manner above provided for the payment of rebate moneys upon certificates hereafter surrendered and canceled, upon the order of the said State Commissioner, to be issued by the said commissioner upon the surrender of such receipt to him, accompanied by the verified petition of the holder of such receipt, setting forth the facts that the holder of said canceled certificate, at the time of the surrender and cancellation thereof, had not violated any of the provisions of the Liquor Tax Law, and has not been arrested or indicted for any such violation." (§ 25, chap. 112, Laws of 1896, as amended by chap. 312, Laws of 1897.) This statute, enacted at the sugges tion of the State Commissioner of Excise, was designed to provide for the payment of rebates, and the mere fact that in the case at bar the rebate was for money paid in excess of the legal rate does not change the rights of the parties, nor does it serve to give this plaintiff a cause of action against the county treasurer of Suffolk county The receipt given to the plaintiff provides that the rebate shall be "payable from any excise money hereafter received from said city or town, or in any other manner hereafter legalized." The Legislature has since that time legalized a particular method for reimbursing those who have these rebate receipts, and the plaintiff must, therefore, look to the source pointed out by the law for his money.

There is no reason to doubt that the plaintiff in this action has had the advantages of a liquor tax certificate equal to those who have in other localities paid $200 for the same. The village in which he is located unquestionably has a population in excess of 1,200 inhabitants, but the statute requires that this fact shall appear by either the last State or the last National census, and he was technically entitled to the tax certificate on payment of $100. He has surrendered his original certificate, and has taken the receipt of the county treasurer, which entitles him to a rebate,

and the law points out a method of payment. We are unable to see that he has any equities in the premises which would warrant this court in sustaining a judgment in his favor against the county treasurer; and as he has his remedy under the law, as amended in 1897, we conclude that the judgment should be reversed and the complaint dismissed, with costs.

All concurred.

Judgment reversed and complaint dismissed, with costs.

First Appellate Department, August, 1898. Reported. 33 App. Div. 130.

HENRY H. LYMAN, as State Commissioner of Excise of the State of New York, Appellant, v. BROADWAY GARDEN HOTEL AND CAFE COMPANY and FIDELITY AND DEPOSIT COMPANY of Maryland, Respondents.

Intoxicating liquor-Action on a bond given to secure a liquor tax certificate-When the complaint states but a single cause of action. A complaint in an action on a bond given to the People of the State of New York to secure a liquor tax certificate, which avers a number of specific breaches of the various conditions of the bond, contains but a single cause of action.

APPEAL by the plaintiff, Henry H. Lyman, as State Commissioner of Excise of the State of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of May, 1898, setting aside the plaintiff's complaint and granting him leave to serve an amended complaint.

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 that, if the tax certificate is given unto the principal, he will not, to quote the precise lan guage of the instrument, "while the business for which such Tax Certificate is given shall be carried on, suffer or permit any

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gambling to be done in the place designated by the Tax Certifi cate 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 obligation 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 main tained without previous conviction or prosecution for violation of any provision of said Liquor Tax Law."

Royal R. Scott, for the appellant.

James R. Soley, for the respondent, Fidelity and Deposit Company 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 any 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 ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Van Brunt, P. J., RUMSEY, O'BRIEN and MCLAUGHlin, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

Supreme Court, New York Special Term, August, 1898. Reported. 24 Misc. 469.

THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, v. MARK Levy et al., Defendants.

1. Greater New York charter-Certificate that a misdemeanor should be prosecuted by indictment.

A certificate will not be granted, under the Greater New York charter (Laws of 1897, chap. 378, § 1406) by a justice of the Supreme Court, that it is reasonable that a charge of misdemeanor, upon which a defendant has been held for trial at the Court of Special Sessions of the second division of the city of New York, should be prosecuted by indictment, except in a case where exceptional features render a jury trial proper, or where a fair trial cannot be had at the Special Sessions.

2. A misdemeanant is not entitled to a jury trial.

In view of the provisions of section 23 of article 6 of the Constitution of 1894, that "Courts of Special Sessions shall have such jurisdiction of offenses of the grade of misdemeanors as may be prescribed by law," a statute which deprives a person, charged with a misdemeanor, of the right to a trial by jury can not be held unconstitutional.

MOTIONS for certificates that it is reasonable that the charges of misdemeanors so made shall be prosecuted by indictments.

Asa Bird Gardiner, district attorney, for People.

N. S. Levy, for Mark Levy.

L. Levy, for Hiedeman.

Price & Hoyer, for Codney.

Mark Alter, for Stajer.

Fromme Bros., for Schottler.

BEEKMAN, J. In all of the above cases, the defendants have been charged with misdemeanors, and have been held for trial at the Court of Special Sessions of the Second Division of the city of New York. In each case a motion has been made before me for a certificate that it is reasonable that the charge so made shall be prosecuted by indictment.

The authority for such a motion is found in section 1406 of the Greater New York Charter, which provides that the Court of Special Sessions shall be divested of jurisdiction to proceed with the hearing and determination of any charge of misdemeanor in either of the following cases: First, if before the commencement of the trial in said court a grand jury shall present an indictment for the same offense; second, if before the commencement of such trial a justice of the Supreme Court, in the judicial department where such trial would be had, shall certify that it is reasonable that such charge shall be prosecuted by indictment.

It will be observed that the granting of such an order is largely discretionary, and that the reasons which would justify such a certificate must be something more than the mere preference of the defendant for a jury trial. Facts must be brought to the attention of the judge, to whom the application is made, tending to show that the case is of an exceptional character, and that for some special reason the defendant cannot have a fair trial in the Court of Special Sessions, or that there are exceptional features in the case which render it desirable and proper that the action should be tried before a jury rather than by a justice of the Special Sessions. This, I think, is the plain meaning of the statute. It never was intended that such applications should be granted as a matter of course. This is the more obvious when we consider the condition of the law as it was prior to the enactment of the Greater New York Charter.

By chapter 601 of the Laws of 1895, entitled "An act in relation to the inferior courts of criminal jurisdiction in the city and county of New York" (§ 14), it was provided, among other things, that upon the defendant swearing that he was not guilty of the charge made against him, the justice to whom the application was made should make an order that the charge be proceeded