The complaint alleged that on the 21st of February, 1901, the defendant, Michael Normoyle, was, under the provisions of sections 685 and 686 of the Greater New York charter (L. 1901, ch. 466), convicted of having failed to provide for his wife and children according to his means and was ordered by said magistrate to pay the sum of fifteen dollars a week for their support; and that upon said conviction, in pursuance of the requirements of law, the said defendant, as principal, with his co-defendant, Bridget Lillis, as surety, entered into a bond to the people of the city of New York in the penal sum of seven hundred and eighty dollars, conditioned for the payment of said weekly sum to the commissioner of charities during each and every week for the space of one year after said conviction. The complaint further alleged that said defendant Normoyle failed to comply with the conditions of said bond making said weekly payments. Judgment was demanded for the penalty of the bond. The answer of the defendants did not deny any of these allegations of the complaint, but set up as an affirmative defense that the defendant Normoyle was at all times ready and willing to support his wife provided she would live with him; that said wife and children were not a charge upon the county of Queens during the period covered by said bond and that they had been amply provided for. On the trial of the action neither of the parties offered any evidence and the plaintiff was awarded judgment on the ground that the answer stated no defense. The judgment was reversed by the Appellate Division of the Supreme Court and an appeal is now taken to this court.
The learned Appellate Division based its decision on the theory that the bond executed by the defendant was simply one of indemnity to the county against the wife and children becoming a public charge and cited People v. Pettit *Page 375 (74 N.Y. 320) as an authority for that position. We think this view was erroneous. There is a marked distinction between the provisions of the New York charter and those of the Code of Criminal Procedure as to disorderly persons. Under section 901 of that Code on the conviction of a disorderly person the magistrate may order him to give a bond conditioned that for the term of one year "he will support his wife and children, and will indemnify the county, city, village, or town, against their becoming, within one year, chargeable upon the public." The condition of the bond is to the same effect. (Section 902.) The decision of this court in People v. Pettit was made in an action on a bond given under the provisions of the Revised Statutes of which the sections cited from the Code are substantially re-enactments. But the provisions of the New York charter are different in their character and extend beyond those of the Criminal Code. Section 685 enacts that every person in the city of New York "who actually abandons his wife or children without adequate support, or leaves them in danger of becoming a burden upon the public,or who neglects to provide for them according to his means," etc., may be arrested and brought before the magistrate; and that on conviction of the charge the magistrate shall make an order specifying a reasonable sum of money to be paid weekly for the space of one year thereafter by such defendant to the commissioner of public charities for the support of the wife and children. Section 686 requires the person so convicted to execute a bond with sureties conditioned "that such person will pay weekly for the space of one year such sum for the support of the wife or children or either or any of them, as has been ordered as aforesaid, to the commissioner of public charities." Section 688 enacts that when such an undertaking is forfeited an action may be brought thereon by the commissioner of public charities to recover the amount specified in the undertaking and that "the amount recovered in said action shall be applied and expended for the support of the wife or children or either or any of them." All that was decided in the Pettit case is that as the defendant offered *Page 376 and was willing to care and maintain for his wife if she would live with him, which she, without sufficient cause, refused to do, there was no breach of the condition of the bond. I do not think the case is authority for the proposition that the bond is one simply of indemnity to the public. Assuming, however, such to be the case, it is apparent that by the provisions of the New York charter cited the proceedings taken thereunder are not so limited in their purpose nor in their effect. The intention was not only to indemnify the public, but also to secure proper support for the wife, and the magistrate is required to determine what weekly sum is sufficient for such support. On receiving the weekly payment so ordered or the amount recovered on the bond, in case of a breach, the commissioner of charities is required to apply the same to the support of the wife. It is evident, therefore, that to secure the proper support of the wife and children is the dominant feature of the proceedings.
That there was a breach of the terms of the bond the answer concedes. If the view which we have expressed is correct the fact that the county had not been put to the expense of her support is immaterial, as is also the allegation that the wife was amply provided for during the period covered by the bond, as there is no pretense that it was the defendant who provided for her during such time. The allegation that the husband was willing to support his wife according to his means if she would live with him is insufficient as a defense. Otherwise the husband can, at his pleasure, disregard the order of the magistrate that he shall weekly apply a specified sum for the wife's support, and thus the provisions of the charter in this respect will be virtually abrogated. Had the answer stated that the husband in fact had, during the period covered by the bond, supported and maintained his wife satisfactorily to her, that would have been a good defense to the plaintiff's claim, because the primary obligation of the bond being the support of the wife, it was within her power to accept in satisfaction of that obligation such support as she deemed *Page 377 sufficient. But less than this we think does not constitute a good defense.
The order of the Appellate Division should be reversed and the judgment of the Trial Term affirmed, with costs in both courts.
VANN, WERNER and HISCOCK, JJ., concur with GRAY, J.; HAIGHT and WILLARD BARTLETT, JJ., concur with CULLEN, Ch. J.
Ordered accordingly.