Defendant in this case was arrested on June 5, 1951, and deposited in lieu of bail cash in the sum of $1,000 the property of his daughter. The order of arrest dated August 24, 1948, was granted pursuant to section 827 of the Civil Practice Act upon the ground that defendant a resident of the State was about to depart therefrom and that judgment demanded which would require payment of alimony and counsel fees (the neglect or refusal to perform which would be punishable by the court in contempt) would be rendered ineffectual by such departure. The order of arrest reads in part as follows: “ the judgment demanded requires the performance of an act, to wit, the payment by defendant to plaintiff of a just and reasonable sum for her maintenance and support.” It further provides that the Sheriff hold: “ him to bail in the sum of $1,000.00 * * * conditioned to the effect that said defendant will obey the directions of the court or of an appellate court, contained in an order or judgment requiring him to perform said act as above set forth, or, in default of his so doing, that he will at all times render himself amenable to proceedings to punish him for the omission; and return this order, with your proceedings thereunder, as prescribed by law.”
The action is for a separation. It has been pending since July, 1947. An order directing defendant to pay plaintiff temporary alimony of $20 per week and $200 counsel fee was rendered on July 15, 1947. The action itself was never tried, hence there is no final judgment. A judgment for accrued temporary alimony was entered on November 29, 1949, in the sum of $2,620, representing unpaid arrears of temporary alimony for a period of 121 weeks, commencing with June 19, 1947, and for unpaid counsel fees' in the sum of $200. Plaintiff now *563concedes that the sum of $2,620 then awarded by the court was erroneously arrived at because of an error in calculating the number of weeks that defendant was in arrears and in failing to credit the defendant with the payment of $100 on account of counsel fees. The default was for 88 weeks rather than for 121 weeks, and the actual amount due under that judgment is $1,760.
After his arrest (June 5, 1951), plaintiff made a motion to hold the husband in contempt for failure to pay all the accrued alimony and counsel fees amounting to $4,020. The arrearages therein set forth included all unpaid temporary alimony and embraced the amount for which an interim judgment had theretofore been entered. The question of defendant’s ability to pay was referred to an Official Beferee, who found “ that the defendant is impecunious to the point of depending on others ’ ’, and reported “ that the financial status of the defendant is ‘ zero ’.” The Special Term rejected the Beferee’s report and adjudged defendant in contempt of court and directed him to pay the sum of $4,020 within twenty days and ordered that upon his default an order of commitment issue. Upon appeal to this court, the order to punish defendant for contempt was reversed on the ground that defendant was not able to pay. (Chancer v. Chancer, 281 App. Div. 667.) Plaintiff then made application to have the deposit in lieu of bail applied against the interim judgment. The motion was granted and it is from that order that this appeal is taken.
Belying upon Standard Elec. Equipment Corp. v. Laszkowski (305 N. Y. 58) it is urged that the deposit of $1,000 is answerable for the judgment in the sum of $2,620 theretofore entered. Standard Elec. Equipment Corp. v. Laszhowski was a case in which defendant was arrested under a Judge’s order by virtue of subdivision 7 of section 826 of the Civil Practice Act. The action there was for misappropriation of money and judgment was entered after the arrest. The order of arrest was bottomed on the nature of the action. Payment of that judgment entered after the order of arrest there constituted the direction of the court and the deposit stood as security for its performance.
We think that the Standard Electric case does not compel affirmance here. In the present case, the judgment antedated the arrest and there was no following direction of the court. No final judgment has been entered, nor has defendant disobeyed any order of the court. This court found that he is unable to pay alimony. It seems to us that inasmuch as it has been *564determined that defendant in no way breached the undertaking upon which the cash in lieu of bail was deposited, said deposit is not answerable for more than the defendant himself is answerable. In view of the fact that this case has been pending for more than six years and has not yet gone to trial, and no final judgment against defendant has been rendered, the deposit should not at this time certainly, in the exercise of a proper discretion, be applied for plaintiff’s benefit. (Civ. Prac. Act, § 859.) It should be remitted to its lawful owner if and when the action is dismissed, is discontinued or otherwise disposed of in defendant’s favor.
The order should be reversed and the motion to require payment to plaintiff of the amount of deposit should be denied.