People ex rel. Moore v. Beehler — 43 N.Y. St. Rep. 90

Majority

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The People ex rel. William B. Moore, Overseer, Resp’t, v. William E. Beehler, App’lt.

(Supreme Court, General Term, Fifth Department,

Filed January 22, 1892.)

Headnote

Bastardy—Liability rot affected by death of child.

The warrant in a bastardy .proceeding could not be served on the defendant until after the death of the cbild, because of his having absconded, from, the jurisdiction of the court. Held, that, notwithstanding the death of the child, he was liable to indemnify the town for any expense it had been put to for its support and burial; that he could not, by fleeing from justice and remaining out of the jurisdiction until his offspring died, escape liability for his misconduct.

Appeal from an order of judgment of the Monroe county-sessions affirming an order of filiation made by two justices of.

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the peace in and for the town of Parma in proceedings in bastardy, adjudging the appellant to be the father of a bastard child, and ordering him to pay to the overseer of the poor of that town $129.66 for the support, care, burial and medical attendance of said -child, to reimburse the town of Parma for its expenses on account of the said child to its death on February 3, 1890, and to pay the attorney for the overseer the sum of $54.80 costs, and to enter into an undertaking accordingly.

George A. Benton, for resp’t; W. Henry Davis, for app’lt.

Mary E. Williamson was delivered of a bastard child in the town of Parma, county of Monroe, on the 12th day of August, 1889. She was a resident of that town, and being unable to support the child, bastardy proceedings were instituted by the overseer of the poor of that town against the appellant as the father of the child on the 23d day of August, 1889.

The warrant for his arrest was delivered to an officer, who was not then able to serve it because appellant had absconded from the jurisdiction of the court He returned into the state about the 1st of April, 1890, and on the seventh day of that month he was -arrested and brought before two magistrates of that town, and on the 23d of April, 1890, tlie magistrate inquired into the charge against the appellant, and adjudged him to be the father of the bastard child, and determined that he pay to the overseer ■of the poor, for the support, care, burial and medical attendance of the child, $129.66; and they certified that the reasonable costs of apprehending and securing the appellant, and of the order of filiation, was the sum of $64.65.

After the delivery of the warrant to the officer, but prior to the apprehension and trial of the defendant, the child died. The appellant appealed from the order of the magistrates to the court of •sessions of Monroe county, which court after hearing the proofs •and allegation of the parties, affirmed the order of filiation and .adjudged that the appellant pay to the attorney for the overseer the sum of $54.80 costs of the appeal, and that he enter into an undertaking to the effect that he will pay $129.66, the amount of the judgment below, and that he will indemnify the town for such .sum incurred for the support of the child.

The appellant appealed to this court from the order and judgment. There was abundant evidence to show that the appellant was the father of the child; and the sum he was adjudged to pay was not excessive.

The only question worthy of any consideration arises from the circumstance that the child died before the authorities were able to cause the arrest and trial of the appellant. Section 840 of the Code of Criminal Procedure provides that, “If a woman be delivered of a bastard * * * which is chargeable to a town * * * an overseer of the poor * * * must apply to a .justice of the peace * * * to inquire into the facts of the case.”

By § 841: “A magistrate must,by the examination of the woman ■on oath, and any other testimony which may be offered, ascer

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tain the father of the bastard, and must issue his warrant directed to a peace officer of the county commanding him, without delay, to apprehend the father and bring him before the justice of the peace for the purpose of having an adjudication as to the filiation of the bastard.” Section 851 provides that “ If the defendant be-adjudged to be the father he must immediately pay the amount certified for the costs of the arrest and of the order of filiation and enter into an undertaking * * * that he will indemnify the town where the bastard was born, which may have been or may be put to the expense for the support of the bastard or its mother during her confinement"

The overseer of the poor assumed the care and supervision of the child, he expended the amount the appellant was adjudged to' pay for its support and care and its funeral expenses. The child was an actual charge upon the town when the warrant was issued for the appellaht’s arrest; and had he then submitted himself to the-jurisdiction of the court, the trial would .have taken place while the ' child was living. The statute is a remedial one. Its purpose is to compel the father of a bastard child to indemnify the town for the expenses incurred for its support. The father'and mother of such a child are liable for its support; and in case of their neg-' lect or inability it must be supported by the county, city or town to which it is "chargeable. The mother in this case was unable to-support her child. Its father fled from the state, and neglected to-support it

The construction contended for by the appellant would be an exceedingly narrow one to give to this remedial statute. It would be a miscarriage of justice if the appellant by fleeing from jus- ' tice, and remaining out of the jurisdiction of the court until his-offspring died, could thereby thwart the purpose of the statute- and escape liability for his misconduct

The courts below, we think, correctly held that, notwithstanding the death of the child before the trial, the appellant was liable-to indemnify the town for any expense it had been put to for its support and burial.

We are not aware of any adjudication of this question in our own state. Under statutes very similar to our own it was held in Meredith v. Wall, 14 Allen, 155 ; Smith v. Lint, 37 Maine, 546; Maxwell v. Campbell, 8 Ohio St., 265 ; Hauskins v. People, 82 Ill., 193 ; Evans v. The State, 58 Ind., 587 , that the father was liable-for such expenses in case of the death of the child before the proceedings against him were instituted.

The judgment appealed from should be affirmed, with costs.

Dwight, P. J., and Macomber, J., concur.