People ex rel. Commissioner of Public Charities v. Abrahams

Majority

p. 296

PEOPLE ex rel. COMMISSIONER OF PUBLIC CHARITIES OF CITY OF NEW YORK v. ABRAHAMS.

(Supreme Court, Appellate Division, First Department.

June 23, 1905.)

Headnote

Bastardy—Judgment op Aeeiliation—Reversal on Dependant’s Appeal-Taxation op Costs.

Where a judgment of affiliation in a bastardy proceeding is vacated with costs and a new trial ordered on defendant’s appeal, defendant is entitled (under Code Or. Proc. § 873, providing that the court in bastardy proceedings must award costs to the successful party on appeal, which costs, when awarded in the city of New York to the person charged as father of the bastard, must be paid by the comptroller) to a taxation of the costs on appeal, irrespective of whether the new trial has been had.

Appeal from Court of Special Sessions of City of New York.

Proceedings by the people, on the relation of the commissioner of public charities of the city of New York, against Nathan Abrahams. From an order denying a motion to compel the taxation of costs, defendant appeals.

Reversed.

Argued before O’BRIEN, P. J., and McEAUGHEIN, PATTERSON, INGRAHAM, and EAUGHLIN, JJ.

Henry M. Haviland, for appellant. „

Herman Stiefel, for respondent.

The defendant, on the 20th of May, 1903, was adjudged by the Court of Special Sessions of the City of New York to be the father of a bastard child born to one Fannie Mendelovich. Upon appeal to this court, the judgment was vacated,

p. 297

with costs, and a new trial ordered. 96 App. Div. 27 , 88 N. Y. Supp. 924 . The clerk refused to tax the costs, upon the ground that, inasmuch as the new trial had not been had, the proceeding was not determined. A motion was thereupon made to compel the taxation of costs, which was denied, and defendant appeals.

I am of opinion that the motion should have been granted to the extent of taxing the costs of the appeal to this court. The Code of Criminal Procedure (section 873) provides that:

“The court must award costs to the party in whose favor an appeal is determined. * * * In the city of New York, when costs are awarded upon an appeal to the person charged as the father or mother of the bastard, they must, upon the production of similar vouchers, be paid by the comptroller of that city, and charged to the appropriation made by the commissioners of charities and corrections thereof.”

It will be observed that, by express language of the section, the award of costs is not discretionary, but the court is required to grant the same to the successful party, and such award in no way depends upon the final determination of the proceeding. The costs referred to in this section are the costs of the appeal, and nothing else. It was in pursuance of this section that the order reversing the order of the Court of Special Sessions and ordering a new trial awarded costs to the defendant, he having been successful upon the appeal. The award having been made, he was entitled to have the same taxed, and this irrespective of whether or not the new trial directed had taken place. The proceeding is a quasi criminal one, and the costs of the appeal are given as a matter of right as soon as the appeal is determined.

The order appealed from, therefore, must be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs. All concur.