People ex rel. Thomann v. Culkin — 23 N.Y. Crim. 30

Majority

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SUPREME COURT—APP. DIV.—FIRST DEPT.,

Oct. 23, 1908.

THE PEOPLE ex rel. GALLUS THOMANN v. CHARLES W. CULKIN.

(128 App. Div. 317.)

Headnote

Appeal—Bastardy.

As the Revised Greater New 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 jurisdiction 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 defenedant requiring him to certify a case on appeal.

Herman Stiefel, of counsel (Theodore Gonnoly, with him on the brief), Francis K. Pendleton, Corporation Counsel, for the appellant.

Jacob Fromme, for the respondent.

On the 3d day of December, 190J, 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

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be with child and that said child was likely to be born a bastard and to be chargeable to the city of Yew 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 tio be paid to the commissioner of public charities of the city of Yew 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 conlplete 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.

' Thereupon 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

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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 tlhe 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 pf 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 undertalcing to obey an

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order of filiation, has been given to that part of said order-which fixes the weekly or other allowance to be paid. iSTo such limitation appears in the record presented for certification to the clerk and directed by the order appealed from to be certified.

One 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 undertalcing which limits the right to appeal and withdraws from the consideration of this court every question except the amount of the weekly or other allow* anee 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., Ingraham, Laughlin and Scott, JJ., •concurred.

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

NOTE ON BASTARDY.

GENERALLY.

Proceeding in bastardy is a criminal suit. People v. Colegrove, 63 Hun, 635 .

Statutes regarding not retrospective in operation. People v. Superintendents, 3 Hill, 117 .

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FORMER ADJUDICATION.

Adjudication in favor of party charged by two justices is bar to second proceeding respecting same matter. Thayer v. Overseers, 5 Hill, 443 .

Where order of filiation made, defendant appealed, and proceedings then discontinued, this no bar to new proceedings. Stowell v. Overseers, 5 Denio, 98 .

WHO MAY INSTITUTE.

Where two overseers of poor in town, one may institute without consultation with other. People v. Ogden, 11 N. Y. Cr. Rep. 350 .

Act of application is judicial, and cannot be delegated. People v. Davis, 15 Hun, 209 .

Warrant can be lawfully issued only on application of overseers of poor. Wallsworth v. McCullough, 10 Johns. 93 .

Subsequent assent by overseers to warrant, wrongfully issued in first instance, does not validate same. Wallsworth v. McCullough, 10 Johns. 93 .

WHO ARE.

Word “ illegitimate,” as used in New York Statute of Descents, means begotten and born out of lawful wedlock. Miller v. Miller, 91 N. Y. 315 .

WARRANT.

Need not be under seal, where statute does not expressly require it. Millett v. Baker, 42 Barb. 215 .

Where error in commitment has neither actually prejudiced defendant nor tended to his prejudice in respect to a substantial right, it may be disregarded. People v. McFarlane, 14 N. Y. Cr. R. 186 ; same case, 15 N. Y. Cr. R. 23 .

No provision that depositions must be taken in writing. Simis v. Alwang, 15 N. Y. Cr. R. 467 .

ADJOURNMENTS.

Sureties on defendant’s bond not discharged by adjournment of hearing. People v. Milham, 2 N. Y. Cr. R. 127 .

Several successive adjournments not prohibited, though total amount exceeds time stated in statute. People v. Higgins, 151 N. Y. 570 .

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PRACTICE.

Motion for new trial governed by section 466, Code Civil Procedure. People v. Colegrove, 10 N. Y. Cr. R. 196 .

Surety on bond may defend on ground that instrument not given according to requirements of statute, and that officer taking same was without jurisdiction. People v. Higgins, 12 N. Y. Cr. R. 186 .

Application to increase amount to be paid must be made by commissioner of public charities or overseer of the poor, and cannot be made by corporation counsel. People v. Crispi, 19 N. Y. Cr. R. 492 .

EVIDENCE.

Where white woman had connection with negro, immediately afterwards had connection with white man, and thereafter gave birth to white child,, negro cannot be held to be father. Commissioners v. Whistleo, 3 Wheeler Cr. Cas. 394.

Order cannot be made on mere hearsay evidence of continued absence of husband. People v. Overseers, 15 Barb. 286 .

BASTARDY.

Evidence as to color of child’s eyes inadmissible as to parentage. People v. Carney, 1 N. Y. Cr. R. 270 .

Where court below justified by evidence in finding conception resulted from intercourse with defendant, and testimony adduced by defendant unworthy of credit, judgment of conviction held supported by competent evidence and not against weight thereof. People v. Tripicersky, 11 N. Y. Cr. R. 219 .

Cross-examination as to intercourse with others, admissible where complainant has in her testimony claimed to have been virtuous both before and after the alleged intercourse with defendant. People v. Schildwachter, 11 N. Y. Cr. R. 302 .

BOND.

Bond imposing conditions not required by law held void. People v. Meighan, 1 Hill, 298 .

Bond with one surety, though statute requires sureties, if approved by court, held good. People v. Lyons, 7 Daly, 182 .

What constitutes forfeiture. People v. Jayne, 27 Barb. 58 .

Held not forfeited where defendant was bound to appear at certain term of court, and failed to appear at later term. People v. Swales, 33 Hun, 208 .

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APPEAL.

Mother cannot appeal from order or adjudication made against the father. People v. Shulman, 11 N. Y. Cr. R. 353 .

Code Civ. Pro., 1237, does not apply to bastardy proceedings. People v. Culkin, 22 N. Y. Cr. R. 573 .

Practice governed by section 1414, Charter Greater New York. People v. Culkin, 22 N. Y. Cr. R. 573 .

When order filiation made, duty of defendant under see. 851, C. Cr. K., if desires to give undertaking, to tender same to magistrate for approval, which operates as appeal. People v. McFarlane, 14 N. Y. Cr. R. 555 .

Eeturn on appeal need not contain indorsement showing giving of undertaking to comply with order of filiation. People v. Culkin, 22 N. Y. Cr. R. 573 .

Provisions of sec. 523, Code Cr. Pro., held mandatory as to service of notice on district attorney. Keller v. Cleary, 15 N. Y. Cr. R. 270 .

Orders of Court of Special Sessions in New York reversible by Appellate Division. People v. Crispi, 19 N. Y. Cr. R. 492 .

Cases cited

Miller v. Miller 91 N. Y. 315 N.Y. 1883-02-06 p. 34
Millett v. Baker 42 Barb. 215 N.Y. Gen. Term 1864-06-28 p. 34
People ex rel. Ritzenthaler v. Higgins 151 N. Y. 570 N.Y. 1897-02-02 p. 34
People ex rel. Crandall v. Overseers of the Poor 15 Barb. 286 N.Y. Sup. Ct. 1853-06-06 p. 35
People v. Jayne 27 Barb. 58 N.Y. Sup. Ct. 1858-03-01 p. 35