(77 Hun, 103.)

#### PEOPLE ex rel. RITZENTHALER v. HIGGINS et al.

(Supreme Court, General Term, Fifth Department.

April 12, 1894.)

B a stabdy—Adjournment.

Code Or. Proc. § 849, providing that the magistrate may, on the application of defendant, adjourn the examination not exceeding 30 days, on ■ defendant’s giving an undertaking to appear at the time appointed, does not forbid several successive adjournments, though the aggregate time exceeds 30 days.

Appeal from Monroe county court.

Proceeding by Bernard Ritzenthaler, as overseer of the poor of the city of Rochester, against Edward F. Higgins, impleaded with others. From a judgment of the county court affirming a judgment of the municipal court of the city of Rochester in favor of the plaintiff for $500, defendants appeal. Affirmed.

Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BRADLEY, JJ.

Edward F. Wellington, for appellants.

C. D. Kiehel, for respondent.

LEWIS, J.

On application of the respondent, based upon the affidavit of Mary .Barker, a warrant was issued out of the municipal court of Rochester in bastardy proceedings against Dorian Clapp, one of the defendants, on the 21st day of February, 1891. Clapp was brought before George E. Warner, one of the judges of the said court, on the 23d day of February. He thereupon made application for an adjournment of the examination, and for that purpose executed an undertaking in the sum of $500, with the appellant and another as sureties, and the case was adjourned until the 9th day of March following. Upon the adjourned day the defendant appeared, and made a further application to have the hearing adjourned until the 25th of March, to which time the case was adjourned by consent of the counsel for the people. The hearing was again adjourned at the request of the defendant, the people consenting, to the 8th day of April, 1891. On the last-named day the counsel who had appeared in the former proceedings for the defend*459ant appeared in court, and asked to have the case adjourned until the 4th of May following, stating as a reason for the request that the defendant was confined in the Monroe county jail upon the charge of seducing the said Mary Barker under promise of marriage. The application was granted, and the case was adjourned accordingly. On the 4th day of May the counsel for the defendant again appeared, and asked to have the case held open for 10 minutes to enable him to find his client. The request was granted, but neither Clapp nor his attorney again appeared. Thereupon Judge Warner associated Judge White, the other municipal court judge, with him, and they declared the undertaking forfeited, and this action was thereafter commenced against Clapp and the two sureties. The appellant Higgins alone defended. The case was tried in the Monroe county court before the special county judge, without a jury. He made a decision directing a judgment against the defendants for the sum of $500, and from the judgment entered upon said decision this appeal was taken by the defendant Higgins.

By the charter of the city of Rochester the municipal court of the city is given jurisdiction in bastardy proceedings. Laws 1890, c. 561. Section 848 of the Code of Criminal Procedure provides that the magistrate before whom the defendant is brought—

“Must immediately associate with himself another justice of the peace; * * * and the two magistrates thus associated must inquire into the charge, and must examine on oath the woman who is the mother of or pregnant with the bastard in the presence of the defendant, in respect to the charge, and hear any testimony which may be offered in relation thereto.”

Section 849: “Magistrates may, on the application of the defendant, for good cause, adjourn the examination, not exceeding 30 days, upon the defendant giving an undertaking, with two sufficient sureties, to the effect that he will appear before the magistrates at the time appointed, or that the sureties will pay the sum mentioned therein.”

The provisions of the Code are modified by the charter of Rochester in the following particulars: Judges of the municipal court are not required to be associated together until the commencement of the examination, and the bond the defendant is required to give to obtain an adjournment must be to the effect that the defendant will appear before the said court at the adjourned time, and such other time or times to which adjournment may be had, for the purpose of the examination and determination, and will render himself amenable to any process, order' or commitment that may be issued or made in such proceedings. The bond in question provided that:

“If the said Dorian Clapp shall personally appear before the said municipal court at the time or times to which adjournments may be had for the purpose of the examination and determination therein, and there render himself amenable to any process, order, or commitment that may be issued or made in such proceedings, then this obligation to be void; otherwise, to remain in full force and virtue.”

All the proceedings in the action were had before Judge Warner down to the last adjourned day. They seem to have been regular in that regard, for the charter contemplates that the proceedings shall be conducted before one of the judges until the examination *460actually commences. Up to that time there seems to be no reason-why the judges may not alternate in the conduct of the proceedings.

The only question argued by the appellant which it occurs to-us is of sufficient importance to merit consideration is as to whether ■ the bond was invalidated by the adjournment of the proceeding beyond the time limited by section 849, to wit, 30 days. That section, as we have seen, provides that the magistrate may, on the-application of the defendant, for good cause adjourn the examination not exceeding 30 days. That section, we think, does not prohibit other adjournments, and for a longer timé, by the consent of' both parties. It does not prohibit more than one adjournment at the request of the defendant, but limits the time of any one adjournment to 30 days. It was held in People v. Millham, 100 N. Y. 273,. 3 N. E. 196, that the sureties on a bond in a bastardy proceeding under the provisions of the Criminal Code were not released from-, liability because of the adjournment of the proceedings at the request of the defendant after the examination commenced. It was held that adjournments could be taken from time to time after the commencement of the trial, and the liability of the sureties continued. The provisions of the charter contemplate that more than, one adjournment may be had, and there does not seem to be any limit to the number or time for which adjournments necessary for the proper disposal of the case may be had, either before or after - the examination shall be actually entered upon. All the adjournments having been made at the request of the defendant, and by consent of both parties', we are of the opinion that the trial court correctly held that the defendant was liable upon the undertaking. The judgment appealed from should be affirmed, with costs. All. concur.