Commissioner of Public Welfare v. Simon

This is an appeal in a paternity proceeding by the Commissioner of Public Welfare of the City of New York from an order of the Appellate Division reversing an order and judgment of filiation entered against the defendant in the Court of Special Sessions, New York City, and dismissing the information on the ground that the Statute of Limitations had run. The case comes to this court upon a certificate granting leave to appeal, pursuant to section 520 of the Code of Criminal Procedure.

The child in whose behalf this proceeding has been commenced was born September 7,1931, at the Gouver

The respondent on this appeal raises two questions, first, the jurisdiction of the court; second, the Statute of Limitations.

The Inferior Criminal Courts Act (L. 1910, ch. 659, as amd.) provides for these paternity proceedings within the city of New York. Section 76 of article V of the act, which covers such proceedings, says that an appeal may be taken from the final order or judgment of the court to the Appellate Division of the Supreme Court. From this the respondent argues that no further appeal to the Court of Appeals is permissible. We have acted upon the contrary assumption in Commissioner of Public Welfare v. Jackson ( 265 N. Y. 440 , and 469). It may be that when this case was before us the point was not raised, but it was considered in Matter of Kane v. Necci ( 269 N. Y. 13 ), where we stated that section 520 of the Code of Criminal Procedure applied to the special proceedings of a criminal nature under the Inferior Criminal Courts Act. The reason is apparent by a reference to the provisions of that act.

Article III provides for the jurisdiction and procedure of the Court of Special Sessions, and section 36 of the article relates to appeals. It reads: "If any judgment or determination made by the 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, and may be admitted to bail upon an appeal in like manner; and if the judgment of the supreme court upon such an appeal shall be adverse to the defendant, or the people, appeal therefrom may be taken to the court of appeals as prescribed in the code of criminal procedure.”

Thus we find that trials in the Special Sessions may be carried through on appeal from the judgment to the Appellate Division and to the Court of Appeals, and that appeals from the magistrate’s judgment may go through the Special Sessions to the Court of Appeals. The provision, therefore, in section 76, that appeals in paternity proceedings may be taken to the Appellate Division, did not intend to limit the appeal to that court and thereby break the uniformity of procedure on appeal in criminal cases or in proceedings of a criminal nature. This must be so in the absence of any specific restriction. Why should a case in a Magistrate’s Court be taken through to the Court of Appeals whereas a judgment of the Special Sessions, after trial in that court in paternity proceedings, can only be appealed to the Appellate Division? Apparently the Legislature intended no such limitation in these provisions of the Inferior Criminal Courts Act, and we have so held.

The other point raised upon appeal relates to the Statute of Limitations as contained in section 64. The section reads: “ Proceedings to. establish the paternity of the child and to compel support in accordance with this article may be brought by the mother, whether a minor or not, by the child’s guardian or other person standing in parental relation or being the next of kin of the child, or by any authorized representative of an incorporated society doing charitable or philanthropic work, or if the mother or child is or is likely to become a public charge,

The Appellate Division has held that the two years’ limitation applied to this proceeding, giving no effect to those words, “ that the department of public welfare of the city of New York shall be empowered to bring suit in behalf of any child under the age of sixteen who is, or is hable to be a public charge.” The exception thus created in behalf of the Department of Public Welfare takes it without the two-year period. Such has been the ruling in Commissioner of Public Welfare v. Gavin ( 245 App. Div. 545 ). Perhaps it is not quite accurate to say that the Appellate Division has given no effect to this exception. That court interpreted “ to bring suit ” to mean a civil action or proceeding to recover a sum of money. We do not see how any such action could be maintained to recover in behalf of a child who is liable to become a public charge. These proceedings to obtain support are of a summary nature to afford immediate rehef. Actions to recover sums of money, as we know, in New York city are more or less delayed. A judgment in such an action brought by the Department of Public Welfare might cover past charges and expenses, but what form would the judgment take in an action at law to meet the future liabilities?

The Inferior Criminal Courts Act apparently was enacted to give the procedure in these paternity proceedings whereby the public might be relieved from the support of those hable to become public charges. This

For these reasons the order of the Appellate Division should be reversed, and that of the Court of Special Sessions of the city of New York affirmed, without costs.

Hubbs, Loughran and Finch, JJ., concur; Lehman, O’Brien and Crouch, JJ., dissent.

Ordered accordingly.