People v. Ehrsam — 41 N.Y. St. Rep. 624

Majority

p. 624

The People, Resp’ts, v. William F. Ehrsam, Surety, and Frank Himmel, App’lts.

(New York Common Pleas, General Term,

Filed December 7, 1891.)

Headnote

Disorderly persons—Consolidation act, §§ 1455, 1456—Subsequent OFFER OF SUPPORT.

The conviction of a husband as a disorderly person under §§ 1455,. 1456 of the Consolidation Act of the city of Hew York is conclusive that-he shall support his wife by payment of the specified sum to the commissioners of charities and corrections, and no offer to furnish any other support for the period of one year can be received as a substitute for compliance with the magistrate’s order.

Motion for reargument, or for leave to go to the court of appeals.

Jas. Murphy, for motion ; Louis Hanneman, opposed.

As to the motion for reargument, it does not-appear that the court in disposing of the appeal in this case overlooked the statutes and decisions cited by appellants.

The consolidation act provides that where a party is convicted of being a disorderly person, or of having threatened to abandon,, or having actually abandoned his family, wife or child in the city of Hew York, without adequate support, or in danger of becoming-a burden upon the public, or of having neglected to provide according to his means for his family, the magistrate convicting shall make an order specifying a certain sum to be paid, to the commissioners of charities and corrections of said city weekly for and towards the support of the family of said defendant, such order to-be for the period of one year. Consolidation Act, §§ 1455, 1456.. The Code of Criminal Procedure provides that where the magis

p. 625

trate is satisfied by competent testimony that the defendant is a disorderly person for having actually abandoned his wife or children without adequate support, or for leaving them in danger of becoming a burden upon the public, or neglected to provide for them according to his means, <5r threatened to run away and leave his wife or children a burden upon the public, he may require that the person charged give security by a written undertaking, with one or more sureties approved by the magistrate, to the effect that such person will support his wife or children and will indemnify the county, city, village or town against their becoming within one year chargeable upon the public, and that the undertaking is forfeited by the commission of any of the acts which constitute the person by whom it was given a disorderly person. Code-Grim. Pro., §§ 899-904.

In this case the defendant Himmel was duly convicted on. September 20, 1890, in the city of New York, before police justice McMahon, of being a disorderly person within the provisions above cited, and was ordered to pay the sum of six dollars weekly to the commissioners of public charities and correction of the city and county of New York, toward the support of his family, for the period of one year from said date. Thereupon the defendant Ehrsam entered into a recognizance that Himmel should be of good behavior towards the people of the state of New York for the space of one year then next ensuing the said date, and should pay to the said commissioners weekly, and every week, the said sum. Himmel did not pay the said sum, and this action was brought to enforce the penalty of the said recognizance, which was for $250. The defence was that in November and December, 1890, and before and since, defendant Himmel had made-proffers to his wife to live with her and support her, which offer she declined, and that said Himmel, therefore, had not abandoned his wife or children without adequate support, or left them in danger of becoming a burden upon the public, or neglected to provide for them according to his means.

The justice refused to receive evidence in support of such defence, and upon proof that the husband had neglected to pay the six dollars weekly as.ordered upon his conviction, gave judgment upon the recognizance; from which judgment this appeal was taken.

All the questions which the appellant seeks to raise upon this motion for re-argument, were duly considered by the general term in passing upon the appeal, and in affirming the judgment. The questions as to whether the recognizance was authorized by law, and whether the defence interposed was available to the surety, were passed upon. It was held that the recognizance was authorized by the Criminal Code, as modified by the provisions of the-consolidation act, making special provision for the city and county of New York, following the decision of the general term of this court in The People v. Bracco, January, 1886.

The failure to pay the weekly sum specified in the order of conviction was a breach of the undertaking. It was a failure to-

p. 626

provide for his wife and the commission, of an act constituting Himmel a disorderly person. The case of The People v. Pettit, 74 N. Y., 320 , cited by the appellant, has no application, because the conviction there was not in the city of New York, and consequently there was no order for the payment of a specified sum. The undertaking in that case followed the language of the Criminal Code, § 901, providing that the prisoner would support his wife and children; and it could be forfeited only by proof of his failure to do so; which proof could be combatted by showing.that the defendani had offered "to support his wife, if she would.live with him.

The court said that to maintain an action upon a recognizance given upon the conviction of a person as a disorderly person for neglecting to support his wife and children, it must be made to appear that subsequent to the giving of the bond the person has been guilty of such neglect, and that the conviction is not evidence •of a subsequent breach of the condition of the recognizance. This rule was not violated in the case before us. The conviction of Himmel was not held to be evidence of a subsequent breach of the condition of his recognizance; but proof of a failure to comply with the order made upon such conviction was held to be a breach. It was evidently the intention of the framers of the statute relating ■to the city of New York, Consolidation act, § §1455 and 1456, that upon the conviction of the offender, the magistrate should determine what support he should give his wife and make art order for the payment of a specified sum accordingly. The conviction is conclusive that he shall support his wife in that way, and no offer to furnish any other support for the period of one year specified in the statute can be received as a substitute for compliance with the order of the magistrate.

As to the motion for leave to go to the court of appeals, there ■seems to be no doubt of the correctness of the conclusion arrived .at in this case on the part of the judges. They followed the decision of the general term in the case of The People v. Bracco, above referred to. The practice of the police magistrates and of the district courts has béen uniform on the subject, and the case is not of sufficient public importance to require its submission to the highest tribunal in the state.

The motion should, therefore, be denied, with ten dollars costs.

Bischoff, J., concurs.