Mayor of New York v. Constantine — 46 N.Y. St. Rep. 247

Majority

p. 247

The Mayor, Etc., of New York, Resp’t, v. Thomas S. Constantine and Andrew J. Constantine, App’lts.

(New York Superior Court, General Term,

Filed May 2, 1892.)

Headnote

1. New trial—Code Civ. Pro., § 999. .

A motion for a new trial on the judge’s minutes under § 999 of the Code cannot be made where the trial was before the court without a jury. Such section applies only to jury trials.

2. Disorderly persons—Bond—Bar.

A general judgment in favor of the surety in an action upon an undertaking given upon conviction of a disorderly person, in the absence of proof that it was given for a specific reason.which preserved the right to bring another action, constitutes a former adjudication and is a bar to another action against the surety on the same recognizance.

Appeal from a judgment rendered in an action brought upon an undertaking executed by the defendants which recites that Thomas S. Constantine, one of the defendants, was convicted of being a disorderly person, in that he had abandoned and failed to support his family, and upon such conviction it was adjudged by the justice convicting him that he should pay to the commissioners of public charities and correction the sum of ten dollars per week for the support of his family for the period of one year, and from order denying motion for new trial.

John D. Quincy, for app’lts; Louis Hanneman, corporation attorney, for resp’t.

The issues in this case were tried by a judge of this court without a jury and he filed his decision containing his findings of fact and conclusions of law and the direction for judgment, and judgment was entered accordingly. In such a case there is no jurisdiction to entertain a motion for a new trial upon the minutes of the judge under § 999. That section applies only to jury trials. The motion for a new trial which was made upon all the grounds stated in said section was therefore properly denied irrespective of the particular reason which may have influenced the learned judge.

Upon the appeal from the judgment various reasons have been

p. 248

assigned for reversal, bat it is only necessary to notice one of them, because it is fatal. The printed case leaves it somewhat uncertain whether both defendants appeal, or only the defendant Andrew J. Constantine, but from, the points submitted it clearly appears that the appeal is prosecuted by him alone. As to him, the former judgment of, the district court which was in his favor, and which he pleaded herein as a defense, is a bar to this action.

The present action was brought in December, 1887, by the above named plaintiffs against the defendant Andrew J. Constantine as surety upon a recognizance or undertaking given by the defendant Thomas S. Constantine upon his conviction before a police justice of this city of being a disorderly person for neglecting to support his wife and children. The recognizance or undertaking was given under the provisions of the Code of Criminal Procedure, and the condition was that Thomas S. Constantine should be of good behavior for one year and should pay ten dollars weekly to the commissioners of public charities and correction for the support and maintenance of his family. The breach alleged is that Thomas S. Constantine had not paid to said commissioners the ten dollars per week from the giving of the recognizance or undertaking until the expiration of the year therein mentioned.

Upon the trial it was shown that in February, 1887, the same plaintiffs-brought an action against the same defendants upon the same recognizance or undertaking, and for a breach thereof, in the district court in the city of New York for the third judicial district ; that Andrew J. Constantine answered and set up various defenses; that, upon a trial of the issues raised by the pleadings in that action, a general judgment in favor of said defendant was rendered on or about June 10, 1887, and that upon an appeal by the plaintiffs from said judgment to the general term of the court of common pleas, the said judgment was, on or about October 29, 1887, in all respects affirmed.

As it seems to be well settled that there can be but one recovery upon the recognizance or undertaking sued upon, that a recovery may be had upon refusal to support at any time after the recognizance or undertaking has been given, and that the whole amount is forfeited upon a single breach, the judgment referred to, in the absence of proof that it was given for a specific reason which preserved the right to bring another action, constitutes a former adjudication and as such it is conclusive between the parties on every question covered by it and a complete bar to the present action, at least so far as the appellant now before the court is concerned.

Moreover it may well be doubted whether upon the. last trial the plaintiffs sufficiently established a breach of the condition within the rule laid down in People v. Pettit, 74 N. Y., 320 .

The order denying defendants’ motion for a new trial should be affirmed, but the judgment should .be reversed and a new trial ordered, with costs to the appellant Andrew J. Constantine to abide the event.

Sedgwick, Ch. J., and McAdam, J., concur.