People ex rel. Ritzenthaler v. Higgins — 59 N.Y. St. Rep. 59

Majority

p. 59

The People ex rel. Bernard Ritzenthaler, as Overseer, etc., Resp’t, v. Edward F. Higgins, Impleaded, etc., App’lts.

(Supreme Court, General Term, Fifth Department,

Filed March, 1894.)

Headnote

1. Bastardy proceedings—Municipal court op Rochester.

The charter of the city of Rochester contemplates that bastardy proceedings shall be conducted before one of the judges until the examination actually commences.

3. Same—Adjournment.

In such case, the bond on adjournment is not invalidated by the adjournment of the proceedings beyond the time limited by § 849 of the Code of Criminal Procedure.

p. 60

3. Same—Section 849 of Criminal Code.

Such section does not prohibit more than one adjournment at the request oí the defendant, but limits the time of any one adjournment to thirty days.

Appeal by the defendant' Higgins from a judgment of the Monroe county court for $500 damages and costs, entered against-the defendants September 14,1893, upon the decision of the special county judge before whom the action was tried without a jury.

The action came into said county court upon an appeal by the defendant from a judgment of the municipal court of the city of Eochester.

Edward F. Wellington, for app’lts; G. D. Kiehel, for resp’t.

On application of the respondent, based on the affidavit of Mary Barker, a warrant was issued out of the municipal court of Rochester, in bastardy proceedings against Dorian Clapp,' one of the defendants, on the 21st day of February, 1891. Clapp was brought before George E. Warner, one of the judges of the said court on the 23d day of February. He thereupon made application for an adjournment of the examination, and for that purpose executed an undertaking in the sum of $500 with the appellant and another as sureties, and the case was adjourned until the 9th day of March following. Upon the adjourned day the defendant appeared and made a further application to have the hearing adjourned until the 25th of March, to which time the case was adjourned by consent of the counsel for the people. The hearing was again adjourned at the request of the defendant, the people consenting, to the 8th day of April, 1891. On the last named day the counsel, who had appeared in the former proceedings for the defendant, appeared in court and asked to have the case adjourned until the fourth day of May following, stating as a. reason for the request that the defendant was confined in the Monroe county jail upon the charge of seducing the said Mary Barker, under promise of marriage. The application was granted and the case adjourned accordingly. On the 4th day of May, the counsel for the defendant again appeared and asked to have the case held open for ten minutes to enable him to find his client. The request was granted, but neither Clapp nor his attorney again appeared. Thereupon, Judge Warner associated Judge White, the other municipal court judge, with him, and they declared the undertaking forfeited and this action was thereafter commenced, against Clapp and the two sureties. The appellant Higgins alone defended. The case was tried in the Monroe county court before-the special county judge, without a jury. He made a decision-directing a judgment against the defendants for the sum of $500, and from the judgment entered upon said decision this appeal was- < taken by the defendant Higgins. By the charter of the city of Eochester the municipal court of the city is given jurisdiction in bastardy proceedings, chapter 561, Laws of 1890. Section 848 of the Code of Criminal Procedure provides that the magistrate before whom the defendant is brought must immediately associate with himself another justice of the peace * * * And the two

p. 61

magistrates thus associated must inquire as to the charge, must examine, on oath, the woman who is the mother of or who is pregnant witli the bastard, in the presence of the defendant, m respect to the charge, and hear any testimony which may be offered in relation thereto. § 849: “ Magistrates may, on the application of the defendant, for good cause, adjourn the examination not exceeding 30 days, upon the defendant giving an undertaking, with two sureties, to the effect that he will appear before the magistrates at the time appointed or that the sureties will pay the sum mentioned therein.” The provisions.of the Code are modified by tfie charter of Eochester in the following particulars : judges of the municipal court are not required to be associated together until the commencement of the examination, and the bonds the defendant is required to give to obtain an adjournment must be to the effect that tthe defendant will appear before the said court at the adjourned time and such other time or times to which adjournment may be had for the purpose of the examination and determination, and will render himself amenable to any process, order or commitment that may be issued or made in such proceedings. The bqnd in question provided that “ If the said Dorian Clapp shall personally appear before the said municipal court at the time or times to which adjournment may be had from the purpose of the examination and. determination therein, and there render himself amenable to any process, order or commitment that may be issued or made in such proceedings, then this obligation to be void,otherwise to'remain in full force and virtue.” All the proceedings in the action were had before Judge Warner, down to the last adjourned day ; they seem to have been regular in that regard, for the charter contemplates that the proceedings shall be conducted before one of the judges until the examination actually commences. Up to that time there seems to be no reason why the judges may not alternate in the conduct of the proceedings. The only question argued by the appellant, which it appears to us is of sufficient importance to merit consideration, is as to whether the bond was invalidated by the adjournment of the proceeding beyond the time limited by § 849, to wit, thirty days. That section, as we have seen, provides that the magistrate may, on the application of the defendant, for good cause, adjourn the examination not exceeding thirty days. That section, we think, does not prohibit other adjournments and for a longer time by the consent of both parties. It does not prohibit more than one adjournment at the request of the defendant but limits the time of any one adjournment to thirty days. It was held in People ex rel. Van Aken v. Millham, 100 N. Y. 273 , that the sureties on a bond in a bastardy proceeding under the provisions of the Criminal Code were not released from liability because of the adjournment of the proceedings at the request of the defendant after the examination commenced. It was held that adjournment could be taken from time to time after the commencement of the trial and the liability of the sureties continued. The provisions of the charter contemplate that more than one adjournment may be had and there does not seem to be any limit to the number or time for which adjournments

p. 62

necessary for the proper disposal of the case may be had, either before or after the examination shall be actually entered upon. All the adjournments having been made at the request of the defendant, and by consent of both parties we are of the opinion that the trial court correctly held that the defendant was liable upon the undertaking. The judgment appealed from should be affirmed with costs.

Dwight, P. J., Haight and Bradley, JJ., concur.

Cases cited

People ex rel. Van Aken v. Millham 100 N. Y. 273 N.Y. 1885-10-30 p. 61