#### Clarence J. Hutton, as Overseer of the Poor of the Town of Macomb, Respondent, *v.*George W. Bretsch and Others, Appellants.

Third Department,

May 7, 1913.

Bastards—undertaking in bastardy proceedings — liability of sureties — party — suit against sureties by overseer.

The undertaking given by a defendant in bastardy proceedings under subdivision 3 of section 844 of the Code of Criminal Procedure in order to obtain his release, serves the same purpose as that prescribed in subdivision 3 of section 851. If the defendant is arrested outside of the county where the bastard is born, he has his choice between giving an undertaking to appear and answer at the next County Court and obey its order, or to be taken before the magistrate who issued the warrant and submit to an immediate hearing.

Sureties on the bond of a defendant in bastardy proceedings given under subdivision 3 of section 844 of the Code of Criminal Procedure, regulating such undertaking where the defendant is arrested in another county, are liable thereon where the defendant, having been adjudged tobe the father of the bastard by justices of the peace, submitted the case for review in the County Court, and after an affirmance failed to give the undertaking required by sections 867 and 868 of the Code of Criminal Procedure. The failure to give the undertaking required by the latter sections worked a forfeiture of that given under subdivision 3 of section 844 of the Code of Criminal Procedure.

The sureties on such bond cannot escape liability because the defendant in the bastardy proceedings did not give the ten days’ notice of appeal required by section 863 of the Code of Criminal Procedure, where by voluntarily submitting the case to the County Court he had the benefit of an appeal without objection.

Where a defendant in bastardy proceedings has failed to pay the sums directed in the order of affiliation, the overseer of the poor of the town may maintain an action against his sureties.

Howard, J., dissented.

Appeal by the defendants, George W. Bretsch and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of St. Lawrence on the 1st day of July, 1912, upon the decision of the court rendered after a trial at the St. Lawrence Trial Term before the court without a jury.

*69*William D. Morrow [John Conboy*of counsel], for the appellants.

*Abbott & Dolan [James C. Dolan*of counsel], for the respondent.

Woodward, J.:

This action was brought against the defendants as sureties upon an undertaking in bastardy proceedings. One Maggie Devendorf, of the town of Macomb, St. Lawrence county, gave birth to a bastard child on the 18th day of August, 1910. Upon her information a warrant was issued by Alvin W. Fetterley, a justice of the peace of that town, for the arrest of Boss Pierce, of Theresa, N. Y., and charging him with being the father of said child. The warrant contained a direction to the justice of the peace in Jefferson county, who was to indorse the warrant, to admit Boss Pierce to bail upon giving an undertaking in the penal sum of two hundred and fifty dollars. The warrant was duly indorsed by James W. Wakefield, a justice of the peace of the town of Theresa, and Pierce was subsequently arrested and brought before the magistrate, where the defendants herein entered into an undertaking, under the provisions of subdivision 2 of section 844 of the Code of Criminal Procedure, that the defendant would appear and answer the charge at the next County Court of the county where the warrant was issued, and obey its order thereon. Upon the giving of this undertaking Pierce was discharged from custody, and the undertaking and warrant were returned to the justice who issued the warrant. Acting under the provisions of section 854 of the Code of Criminal Procedure Justice Fetterley associated another justice of the peace with himself, and proceeded to determine the questions involved in a proceeding of this character. They found that Pierce was the father of the child, that Maggie Devendorf was indigent, and that the child was chargeable to the town of Macomb. By the order, which complied with all of the requirements of section 850 of the Code of Criminal Procedure, Pierce was required to pay to the overseer the weekly sum of three dollars and fifty cents, the sum of twenty-five dollars for confinement expenses and twenty-two dollars and sixty cents costs of the proceedings. The justices *70filed the original undertaking and the order of filiation with the clerk of St. Lawrence county on the 25th day of August, 1910. The next term of the County Court of that county was held on the 24th day of October, 1910. Pierce had never taken an appeal from the order of filiation, but upon the convening of court appeared by his attorney, and the proceeding was adjourned to the third day of November, at the law offices of Abbott & Dolan, Gouverneur. Pierce appeared with his attorney at the adjourned hearing, and the case was taken into consideration by the County Court, resulting in an order affirming the order of filiation, except that the order limited the payment of three dollars and fifty cents per. week to the 22d day of August, 1911, where no limit had been previously fixed, and provided that the defendant enter into an undertaking as provided in the order of filiation for the payment of that sum and the costs of the proceeding. Pierce has never paid anything on account of this proceeding; the time limited by the final order of the County Court has expired, and the plaintiff, as overseer of the town, has recovered a judgment for the amounts provided in the order of filiation, as modified by the order of the County Court. The defendants appeal from the judgment.

The defendants urge that the County Court never had jurisdiction of the bastardy proceedings; that the final order of the County Court affirming the proceedings, and limiting the payments to one year, and directing the giving of an undertaking as provided in the order of filiation, was without force, and that Pierce, by appearing at the County Court, discharged his sureties in the original undertaking. We are of the opinion that the proposition is untenable. It is true, of course, that the order of filiation did not contain any direction for the giving of an undertaking, and, to this extent, the order of the County Court was mere surplusage. The statute makes no provision for directing an undertaking in the order of filiation. The statute provides what the order shall contain, and th,e order found in the record complies with the statute. Section 851 of the Code of Criminal Procedure then provides that if the defendant be adjudged to be the father, he must pay certain costs, and enter into an undertaking with sufficient *71sureties approved by the magistrates to the effect that he will pay the weekly sum fixed by the order and indemnify the town and county and the public generally against expenses growing out of the bastardy, or “ That he will appear at the next term of the County Court of the county, to answer the charge and obey its order thereon, or that the sureties will pay a sum equal to a full indemnity for supporting the bastard and its mother, as provided in the first subdivision of section eight hundred and forty-four.” In default of such an undertaking he is to be committed to the county jail until discharged by the County Court. (Code Crim. Proc. § 852.)

But the procedure prescribed in section 851 is that which prevails where the defendant is taken before the magistrate issuing the warrant, or one within, that county, and where he has not given the bond required by section 844 of the Code of Criminal Procedure. (See §§ 844-851, both inclusive.) The undertaking provided by section 844 of the Code of Criminal Procedure in its 2d subdivision serves exactly the same purpose as that provided in subdivision 2 of section 851; in the one instance if the defendant is arrested outside cf the county where the bastard is born he is permitted to have his choice between giving an undertaking to “appear and answer the charge at the next County Court of the county where the warrant was issued, and obey its order thereon,” or to be taken before the magistrate who issued the warrant and submit to an immediate hearing (§§ 844, 846, 848), while in the other, after having been adjudged to be the father, if he desires a review of the whole question, he must give an undertaking to appear at the next term of the County Court of the county to answer the charge and obey its order thereon. (§ 851.) Both of these provisions have the same purpose, to liberate the defendant during the interval between the original proceedings and the n'ext sitting of the County Court,- and to insure the presence of the defendant within the jurisdiction of that court, where he has failed to give the undertaking provided in the first subdivisions of sections 844 and 851. If the defendant is arrested outside of the county and gives the undertaking provided in section 844, the magistrates within the county are authorized to conduct the examination and to make the order of filiation in *72the absence of the defendant, unless he demands to be present, and the original undertaking extends over this proceeding of the magistrates and reaches to the next session of the County Court in exactly the same manner as the undertaking provided upon the adjudication under section 851. It seems to us clear, therefore, that the giving of the undertaking at the time of the arrest to appear before the County Court, as provided by section 844, is merely giving in advance the undertaking which the defendant would be required to give upon an adjudication that he was the father of the bastard, and that the provisions of section 862 of the Code of Criminal Procedure that “when the father or mother of the bastard has entered into an undertaking for appearance at the next term of the County Court of the county, as provided in sections eight hundred and fifty-one and eight hundred and fifty-eight, it is an appeal from the order of filiation or maintenance; and no other notice thereof is necessary,” should be understood to apply to the exact equivalent of this undertaking provided for in section 844, and that the giving of the undertaking, at the time of the arrest, to appear at the next term of the County Court and to abide by its order, is a notice of appeal from the adjudication which may be made in the absence of the defendant. The defendant did appear at the next term of the County Court; he submitted the adjudication to the determination of the County Court, and that court affirmed the adjudication, merely limiting the order for a weekly allowance to a period of one year instead of leaving it indefinite, and the mere clerical defect, in directing the giving of the undertaking, is of no consequence here. Sections 867 and 868 of the Code of Criminal Procedure require that upon the affirmance of the adjudication of the magistrates the defendant shall enter into an undertaking to perform the conditions imposed by the order, and in default of this the defendant is to be sent to jail, until he does so or is discharged by the court. Section 869 provides that “ the undertaking for the appearance of the defendant at the County Court, upon an appeal, 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.” The defendant having had all the advantages of an appeal, and having *73failed to give the undertaking required by section 867 of the Code of Criminal Procedure, we are of the opinion that his undertaking was forfeited, and that the defendants in the present action are called upon to discharge the obligation of the bond; that they cannot be heard to defeat this obligation because the défendant in the bastardy proceeding did not give notice of an appeal, the benefits of which he has had without complaint upon the part of any one. The defendant in the bastardy proceeding had a right of appeal, and the County Court had jurisdiction of such appeal. (Code Crirn. Proc. § 861.) The defendant did appeal to the next term of the County Court, to which his appeal was limited, and the court did not fail of jurisdiction merely because the defendant failed to give the notice of ten days, assuming that the giving of the undertaking did not amount to such notice. The language of the statute giving the appeal is clear and unmistakable, while the language of section 862 of the Code of Criminal Procedure merely says that “In any other case, the appeal is taken, by a written notice of at least ten days,” etc., which by no means goes to the jurisdiction of the court where all of the parties appear and proceed without objection.

The further contentions of the defendants that the plaintiff has no authority to bring the action, and that it could only be brought upon an order of the court are without force here. These questions were disposed of in *Constable*v. *Kennedy*(21 App. Div. 97, 100).

The judgment appealed from should be affirmed, with costs.

All concurred, except Howard, J., dissenting.

Judgment affirmed, with costs.