#### The Mayor, Etc., of the City of New York, Respondent, *v.*Nicholas Celia et al., Appellants.

(Supreme Court, Appellate Term,

March, 1898.)

1. Bond to support a bastard — Release of father by mother.

A release, executed by the guardian of the mother of a bastard, in terms containing a release by the mother, for a valuable consideration, of any further obligation upon ,the part of the father, is not a defense to him, *pro tanto,*to an action upon a bond given by him to the People for the -support of the child; and the release is inadmissible in any view, as the mother is not "a party, to and cannot affect the bond, either in his operation, force or continuance.

*2.*Same — Breach.

The neglect of the father to pay,' according to the bond, is a breach of it, and the city need not show that it has actually paid money to support the child.

*139Appeal from a judgment of the Third Judicial ¡District Court, in favor of the plaintiff.

M. A. Lesser, assistant corporation counsel, for respondent.

Edward McKinley, for appellants.

Gildersleeve, J.

The defendant, Nicholas Celia, gave a bond, under section 851 of the Criminal Code, with the other two; defendants as Ms sureties, to pay $2.50 a week for the support'of Ms bastard child. He defaulted in the payment of such weekly instalments, and the commissioners of public charities ordered suit to be brought, under sections 881, 882 of the Criminal Code, to recover total instalments then due, amounting to $100. By the terms of Ms bond, said defendant and Ms sureties are held and bound to the People of the State of New York, in the sum of $250, to be paid to the said People of the State of New York, in case of the failure of the said defendant to pay weekly and every week such sum of $2.50 for the support of such cMld.

On the trial, defendant sought to introduce into evidence an alleged release, claimed to have been executed by the guardian of the mother of the cMld, by wMch said mother released the defendant from all obligation to support the child, in return for the sum of $50, alleged to have been paid by the said defendant to the said mother. No offer is made by defendant to show that the cMld had been actually supported by its mother. This alleged release was ruled out, to wMch ruling defendant duly excepted; and judgment was given for the plaintiff.' The question presented upon tMs appeal is (1) Did the exclusion of the - alleged release constitute reversible error; and (2) Should the defendant have been allowed to prove that he had paid to the mother, for the support of the child, in addition to the amounts paid to the commissioners of charities, the sum of $50, on August 18th, the time 'of the alleged release, so that such sum might be credited on the $100 due on the bond? - j

"We agree with the learned assistant corporation counsel that it was not necessary for plaintiff to prove the actual payment of money by the city authorities for the support of the child; but that the defendant’s neglect to pay the sum, ordered to be paid for such support, was a breach of the undertaMng, and the measure of the damages was the sum ordered to be paid, and which was with*140held at the time of the commencement of the action, with interest thereon. Criminal Code, § 883. So far as the release purports to free the said defendant from the obligations of the bond, its introduction was entirely inadmissible. The bastardy undertaking-was-made to the People of the State of New York, for the purpose of insuring the support of the child. It was not given for the support of the mother. She is not a party to it,, and she has no interest in it. She cannot, in any way, affect it, either in its operation, force or continuance. See People ex rel. Board of Police v. Shulman, 8 App. Div. 517. The power to compromise is vested solely in the commissioners of charities; and, as this function is judicial in its nature, as distinguished from a purely ministerial 'duty, it could not effectively be transmitted to another person. The evidence, sought to be introduced by defendant, that one Blake, who appears to have died before the trial, and 'of whose official position or authority no evidence is offered, had verbally consented to the release, was clearly inadmissible. No effort is made to-prove that the commissioners of charities had ever sanctioned the release, or 'even knew anything about it.

With regard to the exclusion of the evidence, offered by defendant, to prove that he had paid $50 to the mother of the child-, it must be held that there was no error in such ruling. The defendant paid the money, if at all, at his own risk, and with such payment the plaintiff is not at all concerned. Defendant’s obligation was to pay to the commissioners of charities the sum of $2.50 a week, and he cannot 'avoid that obligation by paying .$50 to-another party; without authorization by the commissioners of charities, even if that other party was the mother of' the child. See People ex rel. Board of Police v. Shulman, *supra.*

It, therefore,'follows that the judgment appealed from should Ire affirmed, with costs. '

Beekmae, P. J., and Ciegebich, J., concur.

Judgment affirmed, with costs.