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People ex rel. Downs v. Lindsay

6 N.Y.S. 38 Court N.Y. Gen. Term Decision date 1889-07-06 English

Delivered by Learned, P. J.

Contents

Majority

p. 38
People ex rel. Downs, Overseer, v. Lindsay.
(Supreme Court, General Term, Third Department.
July 6, 1889.)

Headnote

1. Bastardy—Order op Filiation—Appeal-Bond.
Where the bond given by defendant in bastardy proceedings before justices, on-appeal to the court of sessions from an order of filiation made therein, does not comply with Code Grim. Proc. If. Y. § 851, the appeal Should be dismissed.
2. Appealable Orders.
An order of the court of sessions, setting aside, on appeal, an order of filiationmade by justices, is appealable.
Appeal from court of sessions, Washington- county.
On the relation of Samuel C. Downs, overseer of the poor of the town of Hartford, Joseph Lindsay was adjudged the father of a bastard child, and an order of filiation was made, from which he appealed to the court of sessions, where the order was annulled, and plaintiff appeals.
Argued before Learned, P. J., and Landon and Ingalls, JJ.
T. A. Lillie, (Potter c6 Lillie, of counsel,) for appellant. M. H. O'Brien, for respondent.

The defendants move to dismiss this appeal on the ground that no such appeal lies from the order of the court of sessions. The contrary was decided in Tillotson v. Smith, 12 N. Y. St. Rep. 331 , by the general term of the Fourth department, and we agree witli that decision.

An order of filiation was made by two justices, November 17, 1887. The defendant desiring to appeal executed a bond, but the bond did not conform to the provisions of section 851, Code Grim. Proc. At the court of sessions the plaintiff moved to dismiss the appeal on the' ground above mentioned. The motion was denied. When the ease was called the plaintiff made the same objection, and the motion was again denied. Thereupon the plaintiff declined to appear further, and on motion of defendant the order of filiation was set aside and annulled, with costs to defendant. From this the plaintiff brought the present appeal. The defendant does not deny that the bond was not in accordance witli the statute. Section 851, subd. 2. It is not conditioned to obey the order of the court of sessions, nor does it provide for supporting the mother. The bond, if made according to the statute, is an appeal. Section 862, Id. But, if it does not comply with the material provisions of the statute, then it cannot so operate. Whether it might be amended we need not inquire. We think, therefore, that the court of sessions should have dismissed the appeal, and that the order of the court of sessions annulling the order of filiation and granting costs and disbursements to the defendant must be reversed, with costs of this court, and that the appeal to said court of sessions must be dismissed. All concur.

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