(dissenting);
Where a defendant is admitted to hail he is supposed to be in the custody of his surety and the responsibility of the surety is gauged in great part by that consideration. In this case the appellant had actually attached $1,920 in cash, which upon the execution- of the bond in question the law required to be released. It may fairly be considered to have been turned over to the custody of the surety or at his request upon his promise to refund it if a refund was required. I think it is not such a conditional promise as is referred to in People v. Commercial Alliance Life Ins. Co. (154 N. Y. 95), but is a promise to repay the money which has been surrendered on its account when required. I, therefore, favor *- reversal of the order.
Order affirmed, without costs.