If the contract is valid, the plaintiff is entitled to recover the $2,000, as damages liquidated *375and agreed upon by the parties. The damages relate to a single breach or default; they were entirely uncertain, and were the proper subject of liquidation by the parties; they were so liquidated, and hence are not a penalty. (Clement a. Cash, 21 N. Y., 253.)
If the defendant’s contract is to .be deemed a promise that he would procure an order of sale containing the stipulated provision, it is a contract which he had not the power to perform ; and this must have been known to both parties. If it is to be regarded as a contract to induce the court to make an order which was inequitable or contrary to its settled practice, it is illegal and void.
It is to be inferred, probably, that Hr. Bonney, when he gave the $5,000 mortgage to Roe, owned all the lots covered by it. But it does not appear whether he first aliened the two lots mortgaged to Hawke, or the other lots. There is nothing to show affirmatively that he ever conveyed any of them. It may be inferred that Coit could not have mortgaged the two lots without having the title. If the two lots were first aliened, then the other lots might have been ordered to be first sold. (Rathbone a. Clark, 9 Paige, 648).
We must presume the court made the order of sale according to its established practice in such cases. There is nothing in the case from which we can arrive at a different conclusion; and as the facts do not leave it open for the suggestion that the established practice of the court was not followed, the defendant has presumptively contracted that the court would make an order contrary to its established practice, or an inequitable order. Such a contract would be void.
A promise tó pay $2,000, or any other sum, as liquidated damages, in the event that in a suit then pending the court shall fail to make an order, with a specified provision, affecting substantial interests, we think is contrary to public policy, and therefore void. If the order stipulated for be such as it has been usual to make in like cases, then the contract is a wager, that, in the case covered by the contract, the court will decide in a particular manner. Such a contract is void.
Whether such a contract would have been void at the common law, is perhaps not clear; but under our statute (1 Rev. Stat., 662, § 8), all wagers, bets, or stakes made to depend upon *376any lot, chance, casualty, or unknown or contingent event whatever, are declared to be unlawful. Independently, therefore, of its being a contract opposed to public policy, I think it is also in the nature of a wager, and prohibited by statute. (Hall a. Bergen, 19 Barb., 122).
We think the learned judge erred in his direction to the jury, and that he should have dismissed the complaint.
The judgment must be reversed, and a new trial granted, with costs to abide the event.
Present, Bosworth,C. J., White and Monell; JJ.