Bulkley v. Boyce — 17 N.Y. St. Rep. 940

Majority

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Edward B. Bulkley, as Supervisor, etc., App’lt, v. Caleb W. Boyce and John Nicholson, Resp’ts.

(Supreme Court, General Term, Fourth Department,

Filed April, 1888.)

Headnote

Husband and wive—Undertaking given by husband to support wive —When valid under Code Grim. Pro., §§ 899, 900, 901 and 904.

Boyce, as principal, and Nicholson, as surety, executed and delivered to the recorder of the city of Watertown an undertaking, which recited the making of an order by said recorder requiring Boyce to enter into an undertaking, with one or more sureties, in the sum of $200 that he would support his wife ‘ according to his means, and indemnify the said city, etc., against his wife becoming a charge thereon for a year/’ and undertook that said Boyce “shall and will, for one year from date hereof, support his wife according to his means, and will indemnify the said town, city and county against her becoming a charge thereon for the period of one year from date hereof, or pay to said city, town or county the sum of $200 in case of his failure so to do.” After the giving of said undertaking, the defendant Boyce neglected to support or provide for his said wife, and within a year thereafter she became a charge upon said town, which cared for her as a poor person, and brought this action to recover the amount expended in her support (forty-two dollars) during said year. The trial court dismissed the complaint, because the said undertaking was not given in compliance-with or in conformity to the statute. Held, error. That the undertaking accorded with the requirements of the sections of the Code of Criminal Procedure (§§ 899, 900, 901 and 904) under which it was given. That it was not void, because it contained the words “ according to his means. ’

Appeal by the plaintiff from a judgment dismissing the plaintiff’s complaint, entered in Jefferson county, upon a decision rendered at the Jefferson county circuit. The action being tried before the court, a jury having been waived. °

Action was upon an undertaking given upon a conviction of a husband as a disorderly person in having abandoned his wife.

In and prior to 1878, Caleb W. Boyce and Mary J. Boyce, were husband and wife, and resided at the city of Water-town, N. Y. While residing there the husband abandoned the wife, and left her without means of support. There-j after and before August, 1882, the wife removed to and resided in the town of Antwerp. While she resided there, and August 29, 1882, the wife went before the then acting-recorder of the city of Watertown, and made oath to the abandonment of her by her husband, and applied for a,warrant for the arrest of her husband as a disorderly per-J

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son. The recorder issued his warrant for the arrest of the husband, for the offense charged, August 29, 1882, the husband was arrested, and brought before the recorder August 30, 1882, and subsequently and September 19, 1882, was tried before the recorder, and found guilty, and held to bail in the sum of $200. Thereupon the undertaking in suit was given, reciting , the proceedings in the case, the last recitation and condition being as follows:

“ And whereas, on the establishment of said complaint, the said recorder did make an order requiring the said Caleb W. Boyce to enter into an engagement in writing, with one or more sureties, in the sum of $200, that he would support his wife according to his means, and indemnify the city of Watertown, and the county of Jefferson as well as the town of Antwerp, in said county, against his wife Mary Jane becoming a charge thereon for one year, Now, therefore, we, said Caleb W. Boyce and John Nicholson, of Kasoag, Oswego county, N. Y., do hereby undertake that the said Caleb W. Boyce shall and will, for one year from date hereof, support his wife according to his means, and will indemnify the said town, city and county against her becoming a charge thereon, for the period of one year from date hereof, or pay to said city, town or county the sum of $200, in case of his failure so to do.” The undertaking was accepted and approved and filed by the recorder. The husband upon the giving of this undertaking was discharged. The husband did not support his wife, after giving this undertaking.

She became a charge on the town of Antwerp, and help was furnished her by the town by orders upon George F. Shull, which were honored to the amount of forty-two dollars, between June 14 and September 18, 1883, a portion of the year covered by the undertaking.

The court found as a matter of law “that the said undertaking was not given in compliance with our confirmity to the provisions of the statute in such case made and provided, but on the contrary there is a substantial variance therein from such provisions of said statute and the said undertaking is thererore void, and of no effect, and the plaintiff is not entitled to recover of the defendants anything on account thereof.”

In his opinion the trial judge quoted the following provision of 3 R. S. (7th ed.), 2374, § 59: “No sheriff or other

officer shall take any bond, obligation or security, by color of his office, in any other case or manner than such as are provided by law, and any such bond, obligation or security, taken otherwise than as herein directed shall be void,” and held that under said statute the undertaking was void.

John C. Trolan, for app’lt, Henry Purcell, for resp’ts.

Section 899 of the Code of Criminal Procedure declares the following are disorderly persons: (1.) “Persons who actually abandon their wives or children without adequate support, or leave them in danger of becoming a burden upon the public, or who neglect to provide for them according to their means.” (2.) “Persons who threaten to run away and leave their wives or children a burden upon the public.”

Section 900 authorizes a warrant for the arrest of such persons upon complaint on oath to a justice of the peace * * * or recorder.

Section 901 provides that “if the magistrate be satisfied * * * he may require that the person charged, give security by a written undertaking, with one or more sureties approved by the magistrate to the following effect: (1.) “If he be a person described in the first or second subdivision .of section 899, that he will support his wife and children, and will indemnify the county, city, village or town against their becoming within one year chargeable upon the public. (2.) “ In all other cases that he will be of good behaviour for the space of one year, or that the sureties will pay the sum mentioned in the undertaking and which must be fixed by the magistrate.”

Section 904 provides that the undertaking mentioned in section 901 is forfeited by the commission of any of the acts which constitute the person by whom it was given a disorderly person. If we turn back to section 899, we find that a ‘ ‘ neglect to provide for them (wife and children) according to their means,” is one of the acts named, and that an abandonment of wife and children “without adequate support” is another, and threatening to run away and leave a wife and children “a burden upon the public” is another.

Reading these provisions together, it is manifest that it is provided by the statute that husbands are required to provide for wives and children “according to their means,” . and that an abandonment of them without adequate support establishes that the husband so abandoning is a disorderly person within the statute. In defining the words “adequate support,” and the words “according to their means,” found in subdivision 1 of section 899, reference may be had to the rules of law existing before the statute. The husband was bound to furnish a wife’s necessaries or support “suitable to her situation and his condition in life.” Theriott v. Bagioli, 9 Bos., 581; 2 Kent’s Com., 133, § 28.

Evidently the statutes quoted were passed to authorize an enforcement of that duty. When we construe section 904 with the preceding sections, it is evident that the undertaking to be given is forfeited when the husband fails or neglects to provide for the wife according to his means. We are brought to consider the undertaking given with the object of the statutory provisions in view, and finding in section 899, that it is his duty to give such support as his

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means will allow, we see that after the undertaking is executed it is such a neglect as works a forfeiture thereof. Section 904.

These views lead us to the conclusion that the undertaking now before us ought not to be avoided and held invalid because it contains the words “according to his means.” The undertaking accords with the requirements of the statute under which it was given. It is not against public policy, as in the case of Richardson v. Crandall ( 48 N. Y., 348 ). This case is unlike Spinney v. Thurber ( 33 Hun, 448 ). There the order prescribed a penalty of $250. The bond taken was $500. It was given under chapter 171 of the Laws of 1882, being a special statute as to Kings county, and the court said in that case “ the order is the only basis for the bond, and a bond in excess of the order is void under the statute above cited.”

In the case in hand the undertaking recites an order in exact accordance with the condition of the undertaking. As we are of the opinion that the undertaking is in accord with the statute under which it was taken and given, we think the trial court fell into an error in declaring the undertaking invalid and void.

Judgment is reversed and a new trial ordered, with costs to abide the event.

Follett and Martin, JJ., concur.