Opinion
May, 1927.
Order remitting forfeiture of bail bond and directing cancellation of judgment entered thereon reversed upon the law and the facts, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. We are of opinion that the failure of the surety to produce its principal as its undertaking agreed to do, together with the surety's omission to give any account as to his whereabouts, should have required a denial of this application. We do not agree with the contention of the respondent surety company that the facts alleged in the information fail to show the commission of a crime. Even if the information were subject to such criticism, we think the surety could not take advantage of that state of facts. Having given an undertaking to produce the principal, its duty was to produce him and not to rely upon any alleged infirmity in the information. ( Pernetti v. People, 99 App. Div. 391, 392.) Kelly, P.J., Young, Kapper, Lazansky and Hagarty, JJ., concur.