People ex rel. Downs v. Lindsay — 60 N.Y. Sup. Ct. 234

Majority

p. 234

THE PEOPLE OF THE STATE OF NEW YORK ex rel. SAMUEL C. DOWNS, as Overseer of the Poor of the Town of Hartford, Complainant and Appellant, v. JOSEPH LINDSAY, Respondent.

Headnote

Appeal from an order of affiliation — will be dismissed if the bond does not comply with section 851 of the Code of Criminal Procedure.

Where a bond, executed under the statute with a view to an appeal from an order of affiliation, does not conform to the provisions of section 851 of the Code of Criminal Procedure, it is inoperative, and the Court of Sessions should dismiss the appeal.

Appeal by the People of the State of New York from the judgment or final determination of the Court of Sessions of Washington county, vacating and setting aside an order of affiliation made by two justices of the peace of the town of Hartford.

J. Sanford Potter, for the appellant.

M. H. O'Brien, for the respondent.

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 Tillotson et al v. Smith (12 N. Y., State Rep,

p. 235

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 of Criminal 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. Prom this the plaintiff brought the present appeal. The defendant does not deny that' the bond was not in accordance with the statute. (Sec. 851, sub. 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. (Sec. 862, Code of Crim. Pro.) But if it does not comply with 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 mast be dismissed.

Landon and In&alls, JJ., concurred.

Order of Court of Sessions, annulling order of filiation and granting costs and disbursements, reversed, with costs of this court, and appeal to Court of Sessions dismissed.