The opinion of the Court was delivered by

This ai>peal is from a judgment condemning the defendant Schonhausen to pay a license of one thousand dollars for keeping a fixed place for concert, dancing, and variety performances in this city.

*43The defence is the same as that urged in State v. O’Hara, 36 Ann 93 and is untenable for the reasons given in that case.

The judgment was rendered in June 1884 and a suspensive appeal was taken. The State prays for ten per centum upon the license as damages for a frivolous appeal. We shall inflict it.

The decision in the O’Hara case had been rendered several months when the judgment in this case was pronounced and the appeal taken, and the same O’Hara is a co-defendant with Schonhausen here, although the latter avows himself sole proprietor.

It is therefore ordered and decreed that the judgment of the lower court is affirmed, and that iu addition thereto the State do now have and recover of the defendant Schonhausen ten per centum upon the judgment below as damages for a frivolous appeal and the costs of both courts.