People ex rel. Moore v. Beehler — 17 N.Y.S. 418

Majority

p. 418

People ex rel. Moore v. Beehler.

(Supreme Court, General Term,. Fifth Department.

January 22, 1892.)

Headnote

Bastardy—Liability of Father—Death of Child.

Where the father of a bastard, after a warrant has been delivered to an officer for his arrest, flees the jurisdiction of the court, but subsequently, and after the death of the bastard, returns and is arrested, he is liable for all costs incurred in his arrest and trial, and all expenses for the support and burial of the bastard,

p. 419

under Code Grim. Proc. § 851, providing that the person adjudged to be the father of a bastard must indemnify the town for its expense for the support of a bastard, and pay all costs incurred in his arrest and trial.

Appeal from court of sessions, Monroe county.

Action on the relation of William B. Moore, as overseer of the poor, against William E. Beehler. From an order of filiation against him, adjudging him to be the father of a bastard, and ordering him to pay for the support, burial, and medical attendance of such child, to reimburse the town of Parma, and to pay the attorney for the overseer, and enter into an undertaking therefor, defendant appeals.

Affirmed.

Argued before Dwight, P. J., and Maoombeb and Lewis, JJ.

W. Henry Davis, for appellant. George A. Benton, for respondent.

Mary E. Williamson was delivered of a bastard in the town of Parma, county of Monroe, on the 12th day of August, 1889. She was a resident of that town, and, being unable to support the child, bastardy proceedings were instituted by the overseer of the poor of the town against the appellant, as the father of the child, on the 23d day of August, 1889. The warrant for his arrest was delivered to an officer. He was not then able to serve it, for the reason that appellant had absconded from the jurisdiction of the court. He returned to the state about the 1st of April, 1890, and on the 7th day of that month he was arrested, and brought before two magistrates of that town; and on the 23d of April, 1890, the magistrates inquired into the charge against the appellant, and adjudged him to be the father of the bastard, and determined that he pay to the overseer of the poor, for its support, care, burial, and medical attendance, $129.(56; and they certified that the reasonable costs of apprehending and securing the appellant, and of the order of filiation, were the sum of $64.65. After the delivery of the warrant to the officer, but prior to the apprehension and trial of the defendant, the child died. The appellant appealed from the order of the magistrates to the court of sessions of Monroe county, which court, after hearing the proofs and allegations of the parties, affirmed the order of filiation, and adjudged that the appellant pay to the attorney for the overseer the sum of $54.80, costs of the appeal, and that he enter into an undertaking to the effect that he will pay $129.66, the amount of the judgment below, and that he will indemnify the town for the sum incurred for the support of the child. The appellant appealed to this court from the order and judgment.

There was abundant evidence to show that the appellant was the father of the child, and the sum he was adjudged to pay was not excessive. The only question worthy of any consideration arises from the circumstance that the child died before the authorities were able to cause the arrest and trial of the appellant. Section 840 of the Code of Criminal Procedure provides that, “if a woman be delivered of a bastard which is chargeable to a town, an overseer of the poor must apply to a justice of the peace to inquire into the facts of the case.” By section 841, “a magistrate must by the examination of the woman on oath, and any other testimony which may be offered, ascertain the father of the bastard; and must issue his warrant, directed to a peace-officer of the county, demanding him, without delay, to apprehend the father, and bring him before the justice of the peace, for the purpose of having an adjudication as to the filiation of the bastard.” Section 851 provides that, “if the defendant be adjudged to be the father, he must immediately pay the amount certified for the costs of the arrest and of the order of filiation, and enter into an undertaking that he will indemnify the town where the bastard was born, which may have been or may be put to the expense for the support of the bastard or its mother during her confinement.” The overseer of the poor assumed the care and supervision of the child; he expended the amount the appellant was adjudged to pay for its support and care, and its funeral

p. 420

expenses. The child was an actual charge upon the town when the warrant was issued for the appellant’s arrest; and, had he then submitted himself to the jurisdiction of the court, the trial would, have taken place while the child ivas living. The statute is a remedial one. Its purpose is to compel the father of a bastard to indemnify the town for the expenses incurred for its support. The father and mother of such a child are liable for its support, and, in case of their neglect or inability, it must be supported by the county, city, or town to which it is chargeable. The mother in this case was unable to support her child. The father fled from the state, and neglected to support it. The construction contended for by the appellant would be an exceedingly narrow one to give to this remedial statute. It would be a miscarriage of justice if the appellant, by fleeing from justice, and remaining out of the jurisdiction of the court until his offspring died, could thereby thwart the purpose of the statute, arid escape liability for his misconduct. The courts below we think correctly held that, notwithstanding the death of the child before the trial, the appellant was liable to indemnify the town for any expense it had been put to for its support and burial. We are not aware of any adjudication of this question in our own state. Under statutes very similar to our own, it was held in Meredith v. Wall, 14 Allen, 155 ; Smith v. Lint, 37 Me. 546 ; Maxwell v. Campbell, 8 Ohio St. 265 ; Hauskins v. People, 82 Ill. 193 ; Evans v. State, 58 Ind. 587 ,—that the father was liable for such expenses in case, of the death of the child before the proceedings against him were instituted. The order for judgment appealed from should be affirmed, with costs. All concur.