One Irving M. Lathrop' was a resident of the city of Binghamton, Broome county. On or about the 23d day of October, 1909, his wife, Mary Lathrop, complained against the said Lathrop, her husband, that he was a disorderly person and , had actually abandoned her, his lawful wife and their three lawful children “ and left them in danger of becoming a burden upon the public and neglected to provide for them according to his means.” Upon this complaint a warrant against Lathrop as a disorderly person for non-support was issued by the city judge of Binghamton and Lathrop was brought before the city judge and entered a. plea of not guilty. Later the plea of not guilty was withdrawn and a plea of guilty entered. Whereupon the city judge entered judgment that the said Lathrop “give bond with one surety in the penal sum of Four hundred dollars ($400.00), condition (sic) to pay Six dollars ($6.00) weekly for term of one year at office of Broome County Humane Society at Binghamton, N. Y.,” and in default of said bond the said Lathrop was to be committed to the Broome county jail. Lathrop gave a bond which the defendant Macomber signed as surety, dated the 6th day of November, 1909, for the amount of $400, reciting the conviction before the city judge and the direction that he should give á bond, and then the condition of the bond is as follows:
“Now, therefore, the condition of this obligation is such, that if the above named Irving Lathrop shall pay to said Broome County Humane Society the sum of Six ($6.00) Dollars weekly for the space of one year next ensuing, for the support of his wife and children, as has been ordered by the said Special City Judge & Acting as City Judge, then this obligation to be void, otherwise to remain in full force and virtue.”
This bond or undertaking was dated November 6, 1909, and signed by both Lathrop and Macomber.
Later Lathrop went to work for Macomber and earned some *489money which was paid to the Broome County Humane Society upon that undertaking either by Macomber or by Lathrop, and Lathrop made some separate payments, so that altogether upon this bond or undertaking $102 had been paid up to and including March 7, 1910. On the 21st day of June, 1910, this action in question was commenced by the plaintiff in the City Court of Binghamton upon the said bond, obligation or -undertaking executed by Lathrop and by Macomber as surety, judgment being asked for $400 against the defendant Macomber.
Recall now that the condition of the undertaking sued on was to pay $6 weekly" for one year, which would be $312, and that $102 has been paid thereon and that the action was brought in June, 1910, the complaint being sworn to June 14, 1910, and the year would not elapse until November 6, 1910.
The defendant answered in a denial and an affirmative allegation that Lathrop was at the time of the execution of the undertaking and at the time of the trial insane, and also at the time of his pleading guilty was insane, and did not understand- his act, and that hence the "undertaking was void and of no effect.
The case came on for trial in the City Court in Binghamton, and the plaintiff obtained a judgment of $400, the amount named in the undertaking. The defendant appealed to the County Court, where a trial was had before eleven jurors, the plaintiff presenting the judgment and the undertaking and the proceedings in the City Court at the time of the arrest and proof of the payments of $102 on the undertaking, and the concession that John F. Severson was the commissioner of charities of the city of Binghamton, “and that during the year covered by the bond in question that no support was given by the city of Binghamton or Mr. Severson, as commissioner, to the wife or children of Irving M. Lathrop, and that no application was made for such support by them or any one in them behalf,” when the plaintiff rested.
Thereupon the defendant moved for a nonsuit and- dismissal of the complaint upon the ground that no facts sufficient to constitute a cause of action nor the cause of action alleged in the complaint had been proven, and on the further ground that it affirmatively appears that neither the plaintiff nor the city of Binghamton at any time during the year covered by the bond *490furnished to the wife or the children of Irving M. Lathrop any support, and that no application was made for such support. Whereupon this motion was denied, and considerable evidence was given by the defendant as to the insanity of Lathrop. At the conclusion of defendant’s testimony the plaintiff moved to strike out all of this evidence as to the insanity of Lathrop at the time of his pleading guilty and later, which the court granted. Included in the evidence offered by the defendant were proceedings taken beginning December 1, 1910, by John F. Sever-son, commissioner of charities, the plaintiff here, against the said Irving M. Lathrop, to have him committed as an insane person, which proceedings were successful, and on December 2,' 1910, the said Lathrop was committed to the Binghamton State Hospital, an institution for the custody and treatment of the insane, by the county judge of Broome county.
The court directed (after requests of the defendant to go to the jury upon various questions had been denied), on motion of the plaintiff, a verdict in favor of the plaintiff for $400. The defendant moved to set aside the verdict and for a new trial upon the grounds specified in section 999 of the Code of Civil Procedure. The court ultimately granted the motion to set aside the verdict and judgment and for a new trial, and from that the plaintiff appeals here, and that is the question now before us..
It will be recalled that in this case neither the commissioner of charities nor the city of Binghamton, was at any expense, whatever for care of Lathrop’s family. Ho assistance was asked for or' granted. Also, that the action was begun sometime before the conclusion of the year.
I would view this obligation as an obligation at the utmost to pay $6 a week for fifty-two weeks, which would be $312, and upon that obligation $102 had been paid.
A somewhat similar case arising under the charter of the city of Hew York was Goetting v. Normoyle (191 N. Y. 368), in which an action was brought upon á bond given under the provisions of the Hew York city charter, which were somewhat similar to the provisions ,of the Code of Criminal Procedure, under which the action in question is brought. The court held, citing People v. Pettit (74 N. Y. 324), which arose under the provisions of the Revised Statutes similar to the present pro*491vision ■ of the Code of Criminal Procedure, as follows (the court also citing People ex rel. Comrs. of Charities v. Cullen, 153 N. Y. 635, which arose under the New York City Consolidation Act): “I think the plaintiff was bound to prove, upon the issue tendered, that the defendant’s family had been left without support, or such members of the family as came within the purview of the statute, and that they had been supported wholly, or to some extent, at the public expense, within the holding in People v. Pettit (supra). That would be a breach of the defendant’s undertaking and it was readily susceptible of proof. To hold otherwise, in my opinion, involves the illogical proposition that his previous conviction was evidence of his breach of the condition of his subsequent undertaking.
“ For these reasons I think that the order of the Appellate Division was right and, therefore, under the plaintiff’s stipulation that judgment absolute should be ordered in favor of the respondents, with costs in all the courts.”
Cullen, Ch. J., and two other judges dissented, but they agree upon the proposition that is before us :.n this case with what I have quoted from the prevailing opinion by Judge Gray.
The action here was defended upon three grounds, the first being that no support had been given Lathrop’s family and no application was ever made for any and that the wife was the owner of valuable real estate; second, that Lathrop’s failure to make the payments was caused by his insanity, which was an act of God, which discharged the defendant even could he otherwise have been held liable; and, third, that the alleged conviction of Lathrop, as well as the bond in suit, was illegal and void, because of the incompetency of Lathrop at the time of the conviction and execution of the bond.
Without any regard to the last two defenses, I think that the first defense is sufficient and'that the judgment was properly set aside because no support had been given to Lathrop’s family or applied for and because the suit was prematurely brought.
I, therefore, recommend that the judgment appealed from be affirmed, with costs.
Order setting aside verdict reversed ■ and judgment modi fied as per opinion.