Constable v. Kennedy

Hatch, J.:

The City Court of the city of Yonkqrs, in a proceeding before it instituted by the commissioners of charities of said, city, duly made an order of affiliation against John J. Kennedy. From said order the said Kennedy took an appeal to the County Court of Westchester county, and to perfect the same entered into an undertaking with the defendants as sureties therein. This undertaking was given under and in pursuance of subdivision 2 of section 851 of the Code of Criminal Procedure. Its terms, so far as material to the present action, required the said John J. Kennedy to appear at the next term of the County Court of Westchester county and answer the charge and obey its order thereon. The said Kennedy duly appeared at the. next term of said court, and, upon a hearing being had, the order of affiliation was affirmed and the defendant Kennedy was required to enter into an Undertaking, with sufficient' sureties, providing that he would indemnify the city of Yonkers in a sum therein named for the expense and support of the child. This undertaking the defendant Kennedy neglected to give, and he was thereupon committed to the common jail until he paid the costs and sums adjudged against him, and gave the required bond or was otherwise discharged by due process of law. Subsequently the plaintiff instituted this action to recover the sum conditioned to- be paid by the undertaking given upon the appeal, claiming a breach thereof by reason of the failure of the said Kennedy to obey the order of the County Court and give the undertaking required thereby.

The learned counsel for the appellants raises two questions upon this appeal: First, that the only object of the undertaking was to secure the appearance of the defendant before the court upon the appeal, and in the event of the affirmance of the order of affiliation, that he would submit his body to the custody of the author! ties or give the undertaking; that he did the former, and thereby satisfied the requirements of the undertaking. Second, that immediately upon perfecting the appeal, it became a proceeding • pending ■in the County Court, and upon a forfeiture of the undertaking, it could only be prosecuted by virtue of an order of the court by the district' attorney of the county and in the name. of the People. While it is true that section 851 of the Code of Criminal Procedure provides for two distinct, different and independent undertakings, it by no means follows that the" defendant’s contention is to be upheld respecting the obligation created by the undertaking provided for in the 2d subdivision of the section. The distinction between the two undertakings is quite plain. The one required by the 1st subdivision of section 851 provides for the payment of the sum ordered to he paid for the support of the child and the expenses of confinement and recovery of the mother, etc. Upon appeal, where such an undertaking is given, the only question which is brought up for review is that part of the order fixing the weekly or other allowance required to be paid. If a review of the whole matter is desired, then the undertaking must be given as provided in the 2d subdivision. The reason for this seems to be that where the order of affiliation is complied with, by the giving of the undertaking to support, it is in effect an admission that the party charged is in fact the putative father, and is concluded from complaining of any other matter than the amount he is ordered to pay; while, under the other subdivision, the party stands upon his denial as to the whole matter, and becomes entitled to a review of the question. But the terms of the undertaking upon such appeal, and also the provisions of the statute, require the person against whom the order of affiliation was passed, not only to appear before the court, but to obey its order thereon. The policy of the law evidently is to permit a review of the proceeding only upon condition that the party shall comply with the order that is finally made, as well as to appear arid submit his person to custody. By section 867 of the Code of Criminal Procedure is provided the undertaking required upon the affirmance of the order of affiliation, which is, in all substantial respects, the same as is -required upon the order of affiliation under section 851. By section 868, if defendant fails to give the undertaking, he is to be committed to jail. The next section (869) defines what constitutes a forfeiture of the undertaking upon appeal, in this language: “ The undertaking * * * is forfeited by his neglect to appear or to give the undertaking mentioned in the last two sections, unless he be discharged by the court.” We think it entirely clear that the undertaking becomes forfeited upon "failure to obey the. order and give the undertaking, and is not satisfied by appearance only.

This action is properly brought by the plaintiff. The charter of the city of Yonkers confers upon the plaintiff the same pow- ' ers respecting bastardy proceedings as is possessed by the overseers of the poor in the towns of the State. (Chap. 635, Laws of 1895, § 1, tit. 10.) By section 882 of the. Code of Criminal Procedure, authority is conferred upon the overseers of the poor of towns to prosecute an action upon an undertaking requiring a party to obey an order in relation to the support of a bastard, etc. There can be no. doubt but that the undertaking executed in this case, and the order made by the County Court, answer the requirements of this section-. The defendant answers this by claiming that section 881 is the only authority for maintaining the action, and must be, upon order of the court, prosecuted by the district attorney in the name of the People. It is to be observed that the language of both sections, 881 and 882, is not mandatory, but 'permissive. All the substantial requirements of either section are answered by a prosecution under one-. If the court makes the order for prosecution, then the district attorney must prosecute in the name of the" People; if no such order is made, then the overseer may prosecute in his own name. This- construction gives force to both sections, where-otherwise there might be a conflict, and makes provision for the certain enforcement of liability where it exists.

It follows that the judgment should be affirmed, with costs.

All concurred.

Judgment affirmed, with'costs.