#### Robert *W.*Hebberd, Commissioner of Public Charities of the City of New York, *Respondent,*v. Louis H. Levin, Principal, and Frances Hessberg, Surety, Appellants.

First Department,

June 2, 1911.

Husband, and wife — conviction of husband as disorderly person — bond conditioned on support of wife — defenses to action thereon — evidence.

Payment to a wife for the support of herself and children, of the full amount required by a bond given by her husband pursuant to section 686 of the Greater Hew York charter upon his conviction as a disorderly person, is a complete defense to ■ an action on the bond and part . payment is a partial defense.

This is so, although the bond in terms was conditioned on the payment of the amount named to the commissioner of public charities “for and toward the support ” of the wife and children.

In an action on the bond the determination of the magistrate with respect to the amount required for the wife’s support is not open to ' inquiry.

' A statement by the husband in an action on the bond that he provided for his wife is merely a conclusion and is properly stricken from the evidence.

Appeal by the defendants, Louis H. Levin and another, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 1st day of July, 1910, affirming a judgment of the Municipal Court of the city of New York in favor of the plaintiff rendered upon thé decision of the court.

*Louis H. Levin,*for the appellants.

*Terence*Farley, for the respondent.

Lattghlin, J.:

This is an action on a bond given by the defendant Levin as principal and the defendant Hessberg as surety upon the conviction of said Levin of being a disorderly person under section 685 of the -Greater New York charter (Laws of 1901, chap. 466). The bond was given pursuant to the provisions of section *417686 of the charter, and' the action thereon is authorized and regulated by the provisions of section 687 of the charter (as amd. by Laws of 1908, chap. 357).

It. was charged that Levin, threatened to abandon and had abandoned his wife and children without adequate support, ■and that they were in danger of becoming a burden on the public; and on being convicted thereon it ■ was duly adjudged that for a period of one year from the 9th day of February, 1909, he pay to the commissioner of public charities the sum of twenty dollars weekly for and towards the support of his wife and children,. The bond upon which the action is based was conditioned for the payment of said amount weekly to said commissioner “for and toward the support” of the wife and children of Levin. The action was for three weekly installments, but on the trial it appeared that Levin had paid fifteen dollars on account thereof. It is conceded that the judgment was erroneously entered for the full amount of sixty dollars, whereas it should have been for only forty-five dollars.

The appellants attempt to present for decision the question as to whether payment to the wife of the amount required by the order of the magistrate, and to secure payment of which the bond was given, instead of to the commissioner, would be a defense to the action in view of the amendment to said section 687 made by chapter 357 of the Laws of 1908, which, so far as material to the question, provides that it shall not be necessary to prove the payment of money by the commissioner for the support of the wife, or wife and children; but that *“*the neglect to pay the sum ordered to be paid by competent authority for the support of the wife or children shall be a breach of the undertaking, and the measure of damages shall be the sum ordered to be paid and which was withheld at the time of the commencement of the action, with interest thereon.” Doubtless the payment to the wife for her support or the support of herself and children of the full amount required by the magistrate, and- as required, would be a complete defense to an action on the bond, and payment in part would be a partial defense; but the determination of the magistrate with respect to the amount required for that purpose is not open to inquiry on an *418action on the bond. The appellant Levin was permitted to express an opinion to the effect that fifteen dollars was sufficient for the support of his wife and children, and to state that he had ‘i provided for her. ” As already observed the amount required to he paid was not open to review in this action, and his statement that he had provided for his wife is not a statement of fact hut a conclusion, and was properly stricken out.

It follows, therefore, that the determination should be modified so as to direct that the judgment be reduced to fifty-seven dollars, including costs, and as thus modified affirmed, without costs.

Ingraham, P. J., McLaughlin, Clarke and Scott, JJ., concurred. • '

Determination modified so as to direct that judgment be reduced to fifty-seven dollars, including costs, and as modified affirmed,, without costs.