#### The People of the State of New York ex rel. Gallus Thomann, Respondent, *v.*Charles W. Culkin, Clerk of the Court of Special Sessions of the City of New York, First Division, Appellant.

First Department,

October 23, 1908.

Appeal from bastardy proceedings, city of *New*York—case.

As the Revised Greater Hew York charter governing, appeals from the Court of Special Sessions in bastardy proceedings provides that a defendant, who has executed an undertaking to obey an order of filiation, can appeal only from that part of the order which fixes the sum to be paid, a clerk of that court is justified in refusing to certify a case on appeal where the same does not contain an indorsement made on the examination of the complainant showing that' the defendant had given an undertaking, as that fact materially affects the right of appeal and the j urisdietion of the appellate court.

Appeal by the defendant, Charles W. Culkin, clerk, etc., from, an order of the Supreme Court, made at the New York Special Term, and entered in the office of ■ the clerk of the county of New York on the 2d day of July, 1908, directing a peremptory writ of mandamus to issue to the defendant requiring him to certify a,case on appeal.

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      *Herman Stiefel*of counsel *[Theodore Connoly*with him on the brief], *Francis K.*Pendleton, *Corporation*Counsel, for the appellant.

*Jacob Fromme,*for the respondent.

Clarke, J.:

On the 3d day of December, 1907, one Agnes Ehrman, a single woman, in and by her voluntary examination taken in writing and upon oath before the Court of Special Sessions of the first.division of the city of New York, declared herself to be with child and that said child was likely to be born a bastard and to be chargeable to the city of New York, and that Gallus Thomann was the father of said child. Thereupon such proceedings were had in said court that on the 19th day of December, 1907, said Thomann was adjudged by the Court of Special Sessions the father of the bastard child of which Agnes Ehrman was pregnant, and by an order of filiation dated the 19th day of December, 1907, the said Thomann was ordered to pay or cause to be paid to the 'commissioner of public charities of the city of New York the sum of five dollars weekly and every week from the day of the birth of said child for and towards the support and maintenance of the said child likely to be born a bastard, and also ten dollars lying-in expenses.

Thereupon the said Thomann entered into an undertaking with two sufficient securities to obey said order of filiation and indemnify the public as provided in section 851 of the Code of Criminal Procedure. There was indorsed upon the paper containing the voluntary examination of the complainant the entry “ undertaking given to comply with order of filiation the 19th day of December, 1907.” From the order of filiation the said Thomann appealed to the Appellate Division of the Supreme Court in the first department.

Thereafter counsel for the defendant in said proceeding presented a case on appeal to the clerk of - the Court of Special Sessions for certification. The clerk refused to certify the same upon the ground that the printed case did not contain the complete judgment roll in that the indorsement on the voluntary examination of the complainant, wherein it appears that an undertaking to comply with the order of filiation was given and the undertaking to comply 'with the order of filiation, were not included in the same.

*319Thereupon this proceeding was instituted to procure from the Supreme Court a peremptory writ of mandamus directed to the clerk of the Court of Special Sessions commanding him to certify the case on appeal which had theretofore been served upon said clerk and to return the same to the clerk of the Appellate Division. The learned court at Special Term granted said motion and from the order directing said peremptory writ of mandamus to issue this appeal is taken.

Subdivision 3 of section 1409 of the Revised Greater New York charter (Laws of 1901, chap. 466) provides that the Courts of Special Sessions “shall have exclusive jurisdiction in the first instance of all proceedings respecting bastards within The ■ City of New York, and the jurisdiction conferred by sections eight hundred and thirty-eight to eight hundred and sixty inclusive of the Code of Criminal Procedure shall be exclusively exercised within said city by said courts.” Section 1414 of said charter provides that “if any judgment or determination made by the said Court of Special Sessions shall be adverse to the defendant, he may appeal therefrom in the same manner as from a judgment in an action prosecuted by indictment.”

Subdivision 3 of section 1409 of said charter also provides that a defendant may appeal from an order of filiation, and proceeds : “ But a defendant who has executed an undertaking to obey an order of filiation and indemnify the public, as provided in section eight hundred and fifty-one of the Code of Criminal Procedure, cannot appeal from any other part of said order than that which fixes the weekly or other allowance to be paid.”

An appellate court reviews the decision of the court appealed from upon the record presented to it. Matters *dehors*that record are not before the court. The jurisdiction of the Appellate Division to review proceedings in bastardy in the Courts of Special Sessions in the city of New York is expressly limited by the charter provisions hereinbefore set forth, and the right to appeal, which right is entirely statutory, is thereby expressly limited, when an undertaking to obey an order of filiation has been given to that part of said order which fixes the weekly or other allowance to be paid. No such limitation appears in the record presented for certification to the clerk and directed by the order appealed from to be certified.

*320One of the necessary papers on file .in said court, the voluntary examination of the complainant, upon which the proceedings were instituted, bears the official indorsement setting forth the fact that the undertaking which- limits the right to appeal and withdraws from the" consideration of this' court every question except the amount of the weekly or other allowance to be paid, has been given. Such indorsement is a material part of the papers instituting the proceedings and must necessarily be included in the record on appeal. The clerk was justified in refusing to certify a case on-appeal which did not disclose a fact in the proceedings materially affecting the right to appeal and the jurisdiction of this court.

The order appealed from should be reversed and the peremptory writ of mandamus issued thereon vacated and set aside, with ten dollars costs and disbursements.

Patterson, P. J., Iñgraham, Laughlin and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied.