
    J. Preston Hall, Appellant, v. Peter Lanza, Respondent.
    _ Contempt—infancy of a sole surety on an undertaking on appeal, who successfully interposes the defense of infancy — the person giving the undertaking may be adjudged to be guilty of contempt in defeating the rights of the obligee — reference to an opinion to ascertain the reason of the court below.
    
    An undertaking given for the purpose of perfecting an appeal to the County Court from a judgment rendered in a Justice’s Court, the sole surety upon which is an infant, is fictitious, and a person who knowingly gives such an undertaking may, where the surety has successfully interposed the defense of infancy to an action upon the undertaking, be properly adjudged guilty of contempt of court whereby the right or remedy of the obligee has been defeated, impaired and prejudiced.
    ■Semble, however, that in such a case the court may, in its discretion, refuse to adjudge the person giving the undertaking guilty of contempt.
    
      Semble, that the Appellate Division may, on an appeal from an order of the County Court, refer to the opinion handed down by the County Court for the purpose of ascertaining the reasons which led to the making of the order.
    Appeal by the plaintiff, J. Preston Hall, from an order of the 'County Court of Chautauqua county, entered in the office of the clerk of the county of Chautauqua, denying the plaintiff’s motion to punish the defendant for a contempt of court in furnishing a fictitious undertaking.
    
      Louis L. Thrasher, for the appellant.
    
      Herman J. Westwood, for the respondent.
   Spring, J.:

The plaintiff recovered a judgment against the defendant in Justice’s Court. An appeal was taken to the County Court by the •defendant and an undertaking was given to perfect the appeal, upon which his wife, who was an infant, was the only surety or •obligor. The judgment was affirmed in the County Court and judgment was entered for the. plaintiff for $276.62 damages and costs. Execution issued on the judgment was returned wholly unsatisfied. An action was thereupon commenced against the surety, who answered setting up the fact of her infancy as a defense. The plaintiff then procured an order to show cause why the defendant should not be punished for contempt “ for putting in fictitious bail ” (Code Civ. Proc. § 14, subd. 2) whereby the remedy of the plaintiff to enforce his judgment was “ defeated, impaired, impeded or prejudiced.” (Code Civ. Proc. § 14.) '

The proof is undisputed that the surety was under the age of twenty-one years at the time she executed the undertaking and also when she was sued thereon. It also appears without controversy that the defendant knew when his wife signed the undertaking that she was a minor. He was an active, money-making business man of considerable experience.

The county judge, as appears from his opinion, refused to grant the order punishing him. for contempt upon the ground that the bail was not fictitious. We cannot concur in this view. The undertaking was given to aid the defendant on his appeal and to insure the plaintiff in the collection of his judgment in the event of its affirmance. To fill the measure of its purpose it must be enforcible — a security available to the obligee in results. This was not that kind of an obligation. Fictitious bail is not limited to a false signature or to an insolvent surety, but to bail which the obligee may not realize upon.

An undertaking which is to be paid only at the option of the obligor is not a genuine obligation, but fictitious, a mere counterfeit, and the vice inheres in the instrument from its inception. To be sure, as is urged, the surety might not avail herself of her defense. She might pay, but her minority constituted an absolute bar to enforcement of the undertaking if she saw fit to interpose it. An insolvent might pay, but his undertaking would be fictitious. (Nuccio v. Porto, 72 App. Div. 88.)

Had exception been taken to this surety by the plaintiff on the ground that she was an infant the court would at once have required a new surety, entirely disregarding the existing surety. The suggestion that she might not plead her infancy would not have been considered by the court.

It is suggested that the application to punish for contempt may have been denied by the county judge in the exercise of his discretion. The proofs were undisputed, including the infancy of the surety, defendant’s knowledge thereof and the surety’s insistence of it as a defense to the action on the undertaking. If the court had based its decision upon that ground its exercise would have been unwarranted. The opinion shows that the county judge did not regard the undertaking fictitious bail, and that was the only reason for denying the application. We do not deem it necessary to pass upon the question, but it may be added that it has been held in two departments of this court that the opinion may be referred to for the purpose of ascertaining the reasons which governed in disposing of the case. (Bryant v. Allen, 54 App. Div. 500, 504; Fox v. Met. St. Ry. Co., 93 id. 229; Crossman v. Wyckoff, 64 id. 554, 558; Curtis Bros. Lumber Co. v. McLoughlin, 80 id. 636, 637.)

The order of the Oounty Court is reversed, with ten dollars costs and disbursements of this appeal, and the application to punish the defendant for contempt is granted, with ten dollars costs, and the defendant is adjudged guilty of contempt, whereby the right or remedy of the plaintiff has been defeated, impaired and prejudiced, and the said defendant is fined the sum of two hundred and seventy-six dollars and sixty-two cents, with interest thereon from December 1, 1902. It is further directed that said defendant pay the costs and expenses as above set forth, and it is hereby directed that the defendant stand committed to the county jail of Chautauqua county, there to remain by reason of said contempt until said fine and costs be fully paid, unless sooner discharged by the court, and that the proper process issue to make effective the decision herein.

So ordered.

All concurred, except Williams, J., not voting.  