It does not seem to be open to doubt that appellant deliberately disabled himself to meet the obligation of his undertaking. The only question is whether this conduct, initiated six months after the giving of the undertaking, constituted a civil contempt of court.
It was not a “ disobedience to a lawful mandate of the court ” by u a party to the action or other person,” in the language of subdivision 3, section 753 of the Judiciary Law; but, under the decisions, I think that it was “ an unlawful interference with the proceedings ” in an action for which, xmder subdivision 4, any person may be held as for a contempt ; and was also an “ abuse of a proceeding of the court,” for which, under subdivision 2, a party to the action may be so held, this subdivision having frequently been interpreted to apply as well to sureties on an undertaking.
In Nuccio v. Porto, 72 App. Div. 88, 90, the Appellate Division, First Department, said, per Laughlin, J.: " The undertaking was executed, furnished and accepted as a *102‘proceeding of the court1 for upon it the court acted in granting the order of arrest, and the false justification of the surety in an undertaking which was to be the basis of an order of -arrest constituted an unlawful interference with the progress of the action. (Code Civ. Pro., § 14, subds. 2, 4; Matter of Hay Foundry & Iron Works, 22 App. Div. 87; Lawrence v. Harrington, 63 Hun, 195; s. c., 133 N. Y. 690.) This authorized and fully justified punishing him for contempt.”
The learned Appellate Division thus expressly holds, at the outset, that the “ undertaking ” was a “ proceeding of the court.” See also Wilson v. Allen, 3 How. Pr. 369, 311.
It bases its decision that the .act of appellant was a contempt on two distinct considerations:
First, that the false justification of a surety on an undertaking was a contempt under subdivision 2 of section 14 of the 'Code (now section 153 of the Judiciary Law) ; and, Second, that such justification constituted an unlawful interference with the progress of the action (namely, the proceedings therein), under subdivision 4.
To the same effect, in Lawrence v. Harrington, 63 Hun, 196, the General Term of the Second Department, per Pratt, J., spoke of a false justification of sureties as follows: “ It was an interference with the due and orderly progress of the action to its ultimate close.”
By parity of reasoning, if false justification by a surety is unlawful interference with the proceedings in an action, the deliberate and fraudulent dispersal by a surety of the property which formed the basis of his qualification seems to. me to be an equivalent interference with such proceedings. The party for whose protection the court has directed that the undertaking be given is compelled to accept the risk that the surety may in the ordinary course of his affairs become insolvent and impoverished to an extent to disable him to respond adequately in the event of his ultimate liability ; but he does not assume the risk that such surety will deliberately -and intentionally disable himself from responding to that liability which was palpably contemplated when the undertaking was given. Such conduct on the part *103of the surety is not alone a fraud upon the party for whose benefit the undertalcing was given, but is, in the language of the cases above cited, an unlawful interference with the proceedings in the action and with the due and orderly progress of the action to its ultimate close. It is, therefore, punishable as a civil contempt under subdivision 4. It appears to me to be also an “ abuse of a proceeding of the court” under subdivision 2.
The fact that plaintiff waived justification does not affect the issue. As was said in Hatter of Hopper, 9 Hisc. Hep. 171, plaintiff was fully warranted in relying upon the surety’s oath as to his qualification.
The order appealed from should be affirmed, with costs and disbursements.
Order reversed and appellant discharged.