Houghton, J.:
On the 6th day of November, 1909, one Irving Lathrop, upon a plea pf guilty, was convicted by a magistrate of Broome county of being a disorderly person in that he had left his family, consisting of a wife and children, without adequate support and in danger of becoming á burden upon the public, and had neglected to provide for them according to his means. Thereupon the magistrate, in pursuance of the power given by section 901 of the Code of Criminal Procedure, required that Lathrop give security by written undertaking in the penal sum of $400 for the payment of $6 weekly for the space of one year to the Broome County Humane Society for the support of his wife and children. The defendant Macomber signed such undertaking in Lathrop’s behalf, whereupon he was discharged. In compliance with such undertaking Lathrop paid the weekly sum for the term of seventeen weeks and then ceased payment. When fifteen weeks had been in default the plaintiff brought action on such undertaking against the defendant as surety, [484]*484claiming the right to recover the entire $400 as a penalty for its breach, and upon the trial a verdict for that amount was directed against him. Upon a motion for a new trial the verdict was set aside and a new trial granted, from which order the plaintiff appeals.
The defendant insists that the undertaking is not a valid obligation against himself because Lathrop was not of sound mind at the time of his conviction, and that if that position is not tenable that at the time Lathrop ceased making payments he was afflicted with a religious mania amounting to insanity which rendered him incapable of performing work for the pur- • pose of earning money to make the payments, or of appreciating the necessity therefor or his obligations under the bond; and that if this be not so in no event is he liable for the full amount of the penalty of $400 stipulated in' the bond.
The defendant signed the undertaking as surety after Lathrop had plead guilty, and he cannot in this action question the' propriety or legality of such conviction. •
Where one signs an undertaking in proceedings against a husband for the abandonment of his wife, he cannot be heard . to say that the parties were never married (Commissioners of Charities v. O’Rourk, 34 Hun, 349); nor can one who signs as surety a bond of a corporation applying for a liquor tax certificate deny that the corporation was legally organized. (Lyman v. Gramercy Club, 39 App. Div, 661.)
The defendant signed the undertaking in question for the purpose of releasing Lathrop from custody. The undertaking recites that he was duly convicted and that ah order was made in pursuance of such conviction that he pay six- dollars per week for the support of his wife and children for the space of one year, and the condition of the undertaking was that if that sum was so paid the obligation should be void, otherwise to be in full effect.
A surety is estopped from disputing the facts recited in- his obligation, and he will not be allowed to claim that his bond was given without consideration, or that the judicial proceedings in which it was given were irregular, or that the necessary preliminary steps had not been taken. (Decker v. Judson, 16 N. Y. 439; Harrison v. Wilkin, 69 id. 412; 32 Cyc. 69.) [485]*485The defendant could not avail himself of the defense that Lathrop was insane at the time of his conviction and that such conviction was illegal for that reason, and the court, therefore, properly excluded the evidence upon that subject.
Nor was the defendant relieved from his undertaking by the fact that within the year Lathrop became insane. The obligation which the defendant signed was not that Lathrop would work what he could and pay at least six dollars per week for the support of his family, but the engagement that he would pay that sum was absolute. He agreed upon signing the undertaking to make good any non-performance by his principal and he was not relieved from paying by the fact that Lathrop would not work and earn money or that he was disabled from doing so by sickness or insanity. Although Lathrop may have become insane still his legal duty to support his family existed and he would have been hable for actual necessities furnished to them. (Stuckey v. Mathes, 24 Hun, 461; Matter of Wing, 2 id. 671.) The defendant was bound by his obligation notwithstanding the fact that his principal was or may have become insane. A surety is bound by his covenant although his principal through disability of infancy or coverture cannot be held thereon. (Kimball v. Newell, 7 Hill, 116; Erwin v. Downs, 15 N. Y. 575; Pingrey Suretys. & Guar. § 135.)
The death of Lathrop during the year would have discharged the defendant because his obligation to support his family would then cease. (Stinson v. Prescott, 15 Gray, 335.)
In any event it is very questionable whether the defendant could take advantage -under any circumstances of Lathrop’s insanity. It is the party who is insane that can avoid a contract. The sane party thereto cannot disaffirm on the ground that the person with whom he contracted was insane when the contract was entered into. (Allen v. Berryhill, 27 Iowa, 534.)
The obligation which the defendant assumed was one of payment upon default of his principal. Inability to pay by reason of sickness or insanity was not excepted in the undertaking and cannot be read into it, ■ and within the meaning of the law they were not acts of God rendering performance of the contract impossible. Inability to attend court because of sickness [486]*486is a defense to the surety in. an action upon á bond for his appearance (People v. Tubbs, 37 N. Y. 586); and involuntary absence from duty as the result of mental aberration is not cause for removal of a pohce officer because of absence without leave. (People ex rel. Mitchell v. Martin, 143 N. Y. 407.)
But the undertaking in question did not call for any special personal act on the part of Lathrop which his sickness made him incapable of doing, and the principle upon which those cases were decided have no application, and the learned trial court was correct in refusing to receive evidence of Lathrop’s insanity for it constituted no defense.
It remains to be considered to what extent the defendant is liable.
Section 901 of the Code of Criminal Procedure provides that upon confession or conviction of a person for non-support of his family as a disorderly person the magistrate before whom such conviction is had may require that the person so convicted give security by written undertaking with one or more sureties, approved by the magistrate, to the following effect: If he be a person described in the 1st or 2d subdivision of section 899, that he will pay to the county superintendent of the poor or to the overseer of the poor of the town, city or village, or to a society for the prevention of cruelty to children, weekly for the space of one year thereafter a reasonable sum of money to be specified by the magistrate for the support of his wife and children; or that the sureties will pay the sum mentioned in the undertaking, and which must be fixed by the magistrate.
Lathrop was convicted under the 1st subdivision of section 899 and the magistrate fixed the reasonable sum for him to pay weekly at $6.
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Houghton, J.:
On the 6th day of November, 1909, one Irving Lathrop, upon a plea pf guilty, was convicted by a magistrate of Broome county of being a disorderly person in that he had left his family, consisting of a wife and children, without adequate support and in danger of becoming á burden upon the public, and had neglected to provide for them according to his means. Thereupon the magistrate, in pursuance of the power given by section 901 of the Code of Criminal Procedure, required that Lathrop give security by written undertaking in the penal sum of $400 for the payment of $6 weekly for the space of one year to the Broome County Humane Society for the support of his wife and children. The defendant Macomber signed such undertaking in Lathrop’s behalf, whereupon he was discharged. In compliance with such undertaking Lathrop paid the weekly sum for the term of seventeen weeks and then ceased payment. When fifteen weeks had been in default the plaintiff brought action on such undertaking against the defendant as surety, [484]*484claiming the right to recover the entire $400 as a penalty for its breach, and upon the trial a verdict for that amount was directed against him. Upon a motion for a new trial the verdict was set aside and a new trial granted, from which order the plaintiff appeals.
The defendant insists that the undertaking is not a valid obligation against himself because Lathrop was not of sound mind at the time of his conviction, and that if that position is not tenable that at the time Lathrop ceased making payments he was afflicted with a religious mania amounting to insanity which rendered him incapable of performing work for the pur- • pose of earning money to make the payments, or of appreciating the necessity therefor or his obligations under the bond; and that if this be not so in no event is he liable for the full amount of the penalty of $400 stipulated in' the bond.
The defendant signed the undertaking as surety after Lathrop had plead guilty, and he cannot in this action question the' propriety or legality of such conviction. •
Where one signs an undertaking in proceedings against a husband for the abandonment of his wife, he cannot be heard . to say that the parties were never married (Commissioners of Charities v. O’Rourk, 34 Hun, 349); nor can one who signs as surety a bond of a corporation applying for a liquor tax certificate deny that the corporation was legally organized. (Lyman v. Gramercy Club, 39 App. Div, 661.)
The defendant signed the undertaking in question for the purpose of releasing Lathrop from custody. The undertaking recites that he was duly convicted and that ah order was made in pursuance of such conviction that he pay six- dollars per week for the support of his wife and children for the space of one year, and the condition of the undertaking was that if that sum was so paid the obligation should be void, otherwise to be in full effect.
A surety is estopped from disputing the facts recited in- his obligation, and he will not be allowed to claim that his bond was given without consideration, or that the judicial proceedings in which it was given were irregular, or that the necessary preliminary steps had not been taken. (Decker v. Judson, 16 N. Y. 439; Harrison v. Wilkin, 69 id. 412; 32 Cyc. 69.) [485]*485The defendant could not avail himself of the defense that Lathrop was insane at the time of his conviction and that such conviction was illegal for that reason, and the court, therefore, properly excluded the evidence upon that subject.
Nor was the defendant relieved from his undertaking by the fact that within the year Lathrop became insane. The obligation which the defendant signed was not that Lathrop would work what he could and pay at least six dollars per week for the support of his family, but the engagement that he would pay that sum was absolute. He agreed upon signing the undertaking to make good any non-performance by his principal and he was not relieved from paying by the fact that Lathrop would not work and earn money or that he was disabled from doing so by sickness or insanity. Although Lathrop may have become insane still his legal duty to support his family existed and he would have been hable for actual necessities furnished to them. (Stuckey v. Mathes, 24 Hun, 461; Matter of Wing, 2 id. 671.) The defendant was bound by his obligation notwithstanding the fact that his principal was or may have become insane. A surety is bound by his covenant although his principal through disability of infancy or coverture cannot be held thereon. (Kimball v. Newell, 7 Hill, 116; Erwin v. Downs, 15 N. Y. 575; Pingrey Suretys. & Guar. § 135.)
The death of Lathrop during the year would have discharged the defendant because his obligation to support his family would then cease. (Stinson v. Prescott, 15 Gray, 335.)
In any event it is very questionable whether the defendant could take advantage -under any circumstances of Lathrop’s insanity. It is the party who is insane that can avoid a contract. The sane party thereto cannot disaffirm on the ground that the person with whom he contracted was insane when the contract was entered into. (Allen v. Berryhill, 27 Iowa, 534.)
The obligation which the defendant assumed was one of payment upon default of his principal. Inability to pay by reason of sickness or insanity was not excepted in the undertaking and cannot be read into it, ■ and within the meaning of the law they were not acts of God rendering performance of the contract impossible. Inability to attend court because of sickness [486]*486is a defense to the surety in. an action upon á bond for his appearance (People v. Tubbs, 37 N. Y. 586); and involuntary absence from duty as the result of mental aberration is not cause for removal of a pohce officer because of absence without leave. (People ex rel. Mitchell v. Martin, 143 N. Y. 407.)
But the undertaking in question did not call for any special personal act on the part of Lathrop which his sickness made him incapable of doing, and the principle upon which those cases were decided have no application, and the learned trial court was correct in refusing to receive evidence of Lathrop’s insanity for it constituted no defense.
It remains to be considered to what extent the defendant is liable.
Section 901 of the Code of Criminal Procedure provides that upon confession or conviction of a person for non-support of his family as a disorderly person the magistrate before whom such conviction is had may require that the person so convicted give security by written undertaking with one or more sureties, approved by the magistrate, to the following effect: If he be a person described in the 1st or 2d subdivision of section 899, that he will pay to the county superintendent of the poor or to the overseer of the poor of the town, city or village, or to a society for the prevention of cruelty to children, weekly for the space of one year thereafter a reasonable sum of money to be specified by the magistrate for the support of his wife and children; or that the sureties will pay the sum mentioned in the undertaking, and which must be fixed by the magistrate.
Lathrop was convicted under the 1st subdivision of section 899 and the magistrate fixed the reasonable sum for him to pay weekly at $6. The nominal amount of the bond was $400, which would more than cover all the weeks of the entire year, but the condition of the bond was that $6 should be paid weekly for the space of one year. The law did not require a gross sum to be stated in the undertaking. All it required was that weekly payments should be made and that an undertaking to- secure such weekly payments should be given. If Lathrop fulfilled the obligations of the bond by paying $6 per week for the entire year the defendant as his surety was not bound to make up the difference between $312 [487]*487(the amount which fifty-two weeks would yield at $6 a week) and $400, the amount of the hond. So, too, if Lathrop fulfilled the condition of the bond by paying the weekly sum for a part of the year the liability of the surety was extinguished to the extent of such payments. Lathrop did pay in accordance with the conditions of the undertaking for seventeen weeks, and he was in default at the time of the bringing of the action for fifteen weeks.. The defendant became liable as default occurred upon each weekly payment, and at the time of the bringing of the action was liable for the default of fifteen weeks, which at $6 per week amounted to $90. The extent of the defendant’s. liability, therefore, at the time the action was brought was not $400, but was $90 only.
It was not incumbent upon the plaintiff to prove that he as commissioner had supported the family of Lathrop or had paid to it the sum of $6 per week during the term of his default. The undertaking which the defendant gave must be read in connection with the statute under which it was given. Section 904 of the Code of Criminal Procedure, as amended by chapter 506 of the Laws of 1909, expressly provides that the undertaking given in pursuance of the provisions of section 901 shall be forfeited by the failure to make the weekly payments directed hy the magistrate. It was, therefore, unnecessary for the plaintiff to have paid anything or to have incurred any liability before bringing an action upon the undertaking, for such undertaking was forfeited upon failure to make the stipulated payments.
The case of Goetting v. Normoyle (191. N. Y. 368), although arising under a provision of the charter of Hew York city, dealt with sections 901 and 904 of the Code of Criminal Procedure as they existed before the amendment of 1909. Before such amendment those sections clearly provided for an undertaking of indemnity only, and hence no cause of action arose on such undertaking, except as indemnity for moneys expended. These sections since their amendment do not provide for an undertaking of indemnity, but provide for an absolute undertaking forfeited by default in making the payments stipulated.
Under the powers given this court by section 1317 of the Code of Civil Procedure it becomes our duty to direct such judgment as ought to have been given.
[488]*488Judgment is, therefore, directed against the defendant for ninety dollars, with costs.
All concurred, except Betts, J., dissenting, in opinion; Lyon, J., not sitting.