Lester v. Worden — 8 A.D. 216

Majority

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Merriman J. Lester and Charles Almstead, as Overseers of the Poor of the Town of Nassau, New York, Appellants, v. Harmon Worden and Others, Respondents.

Headnote

Affiliation bond—enlarging the obligation of the defendant, as prescribed by statute, is mid.

In an action upon a filiation bond given under subdivision 1 of section 851 of the Code of Criminal Procedure it appeared that, at the time of the execution of the bond in question, that subdivision provided for the execution of an undertaking with approved securities, to the effect “that he (the defendant) will .pay weekly or otherwise, as may have been ordered, the sum directed for the support of the child and of the mother during her confinement and recovery, or which may be ordered by the Court of Sessions of the county.”

The bond in question was conditioned “that if the said Harmon Worden shall well and truly observe all the conditions of said order of affiliation, then this obligation to be void.”

Meld, that irrespective of the fact that the defendant was required to give a bond instead of the undertaking required by the statute, the bond in question was . void;

That the omission of the provision specified in the statute, that the defendant should pay the sum directed “or which may be ordered by the Court of Sessions of the county,” clearly enlarged the liability of the defendant, as it absolutely bound him to pay the amount directed by the magistrates, and practically deprived him of the opportunity of reducing it by an appeal.

Appeal by the plaintiffs, Merriman J. Lester and another, as overseers of the poor of the town of Nassau, New York, from a judgment of the County Court of Rensselaer county in favor of the defendants, entered in the office of the clerk of the county of Rensselaer on the 28th day of January, 1895, upon the decision of the court reversing a judgment in favor of the plaintiffs rendered by a justice of the peace.

Nelson Webster and Henderson Peck, for the appellants.

Thomas F. Doherty, for the respondents.

The serious question in this case is over the validity of the bond ■upon which the action is brought. The defendant Worden, who as the principal in the bond, was the defendant in proceedings to «charge him as the father of a bastard child. The bond was given

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under section 851 of the Code of Criminal Procedure, and the defendants Phillips and Hogohoom are his sureties. It is claimed by the defendants that such bond is not within the provisions of that section, and is, therefore, void. At the time this bond was taken it was provided by the Revised Statutes (2 R. S. 286 [1st ed.J, § 59, art. 2, tit. 2, chap. 3, part 3), as follows: “No sheriff or other officer shall take any bond, obligation or security by color of his office, in any other case or manner than such as are provided by law, and any such bond, obligation or security taken otherwise than has been granted shall be void.” This statute has been enforced by the courts with great strictness, and while mere verbal variations from the statutory form will not render the instrument void, yet if the bond in question imposes upon these defendants any burden or obligation greater than the provisions of section 851 require, it is clearly void. (Cook v. Freudenthal, 80 N. Y. 202 ; Haberstro v. Bedford, 118 id. 187; People v. Meigham,, 1 Hill, 298 .) Section 851 contains two subdivisions. The first provides for security when the defendant does not intend to dispute the adjudication that he is the father of the child. It was at the time the bond in question was given as follows: “ that he will pay weekly, or otherwise, as may have been ordered, the sum directed (viz., by the magistrates) for the support of the child, and of the mother during her confinement and recovery, or which may be ordered by the Court of Sessions of the county ; and that he will indemnify the county and town or city where the bastard was, or may be born [as the case may be], and every other county, town or city which may have been or may be put to expense, * * * against those expenses; or that the sureties will do so, not exceeding the sum mentioned in the undertaking and which must be fixed by the magistrates.”

Upon giving an undertaking with approved sureties to the above effect, the defendant was entitled to be discharged from arrest, and while he could not review the adjudication that he was the father of the child, he could appeal from that part of the order of filiation fixing the weekly or other allowance to be paid. (See §§ 852, 861, 862.)

In the case at bar the magistrates, instead of taking an undertah

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•mg, took the bond in question. Without deciding whether the change in form would be sufficient to invalidate it, let us look at its provisions. It recites that an order of filiation has been made by two magistrates of the town of Nassau, Avhereby Worden was adjudged to be the father of a bastard child, and that he was required by such order to pay to the overseers of the poor of the town of Nassau the sum of one dollar and twenty-five cents per week while said child remained a charge upon said town. It further recites that, by such order, said Worden was also adjudged to pay to such overseer a certain amount of costs in such bastardy proceedings, and, after such recitals, it proceeds as follows : “Now, therefore, the condition of these obligations are such, that if the said Harmon Worden shall well and truly observe all the conditions of said order of affiliation, then this obligation to be void, otherwise to be and remain in full force and effect.” Plainly this obligation is to pay one dollar and twenty-five cents per week so long as the child is a charge upon the town of Nassau. But the obligation required by the statute was to pay that sum, or such sum as “ may be ordered by the Court of Sessions of the county,” and the omission of such latter provision from the bond before us clearly enlarges the liability of the defendant and his sureties. Under the obligation required by the statute, if the defendant appealed to the Court of Sessions, and there procured an order reducing the amount to be paid by him (see § 865), he would fully perform its conditions by paying the amount so reduced; but, by the bond Avhich he did give, he must continue to pay the amount fixed by the magistrates’ order of filiation. No provision is made for its reduction by the Court of Sessions, and he is, therefore, practically foreclosed from taking an appeal. Being under bonds to pay the amount fixed by the order of filiation during the whole period that the child remained a charge upon the town, an appeal for the purpose of having such amount reduced would be of uo advantage. The bond in question is, therefore, not only different in form from the undertaking required by section 851, but it also omits therefrom a very important limitation to the defendants’ liability which such section requires shall be in it, viz., that, in the event that the Court of Sessions shall change the amount adjudged to be paid by defendant for the support "of the child, such amount shall thenceforth be the limit of the obligation thereby

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incurred. This omission evidently imposes a different and greater liability upon defendant than the magistrates had the right to exact. Such an obligation is not warranted by the statute, and, hence, is utterly void.

For this reason the judgment of the justice could not be sustained, and its reversal by the County Court was correct.

All concurred.

Judgment of County Court affirmed, with costs.

Cases cited

Cook v. Freudenthal 80 N. Y. 202 N.Y. 1880-02-24 p. 217