People ex rel. Downs v. Lindsay — 25 N.Y. St. Rep. 519

Majority

p. 519

People ex rel. Samuel C. Downs, Overseer, App’lt, v. Joseph Lindsay, Resp’t.

(Supreme Court, General Term, Third Department,

Filed July 6, 1889.)

Headnote

1. Criminal law—Bastardy proceedings—When appeal erom order OE FILIATION DISMISSED—CODE GRIM. PRO , § 851.

Where the bond given by a defendant in bastardy proceedings, before justices, does not conform to the provisions of Code Criminal Procedure, section 851, an appeal taken from the order of filiation should be dismissed.

3. Same—Bond—Appeal—Code Grim. Pro., § 863

Under Code Criminal Procedure, section 863, the bond, if made according to the statute, is an appeal.

8. Same—What orders appealable.

An order of the court of sessions, setting aside, on appeal, an order of filiation, made by justices, is appealable.

J. Sanford Potter, for app’lt; M. H. O'Brien, for resp’t.

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

p. 520

Tillotson et al. v. Smith (12 N. Y. State Rep., 331), by the general term of the fourth department, and we agree with 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. Procedure. At the court of sessions the plaintiff moved to dismiss the appeal on the ground above mentioned. The 'motion was denied. When the case 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 with the statute. Section 851, ■ subdivision 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. Code Crim. Pro., § 862. 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.

Landon and Ingalls, JJ., concur.