People v. Mitchell — 6 N.Y. Super. Ct. 466

Majority

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The People v. Mitchell and others.

Headnote

A bastardy bond, made under an order of filiation some years after the birth of the child, is not made void by inserting in the condition, besides the sustenance of the child, &c., a clause that the putative father should indemnify the city in which the order was made, and every other city, town, or county, against expenses incurred, or which might be incurred, for the support of the mother during her confinement and recovery therefrom.

Where a compulsory statutory bond pursues the precise language of the act directing it to be taken, it is valid, although at the time it is taken, some part of the prescribed condition cannot be enforced.

Where the condition of such a bond contains an obligation beyond that provided by the statute, it is void.

(Before Oakley, Oh. J., and Sawotoko and Paine, J. J.)

Feb. 7 ;

March 15, 1851.

This was an action brought upon a bond executed by tbe defendants on the 4th day of September, 1847, under an order of filiation against the defendant, Mitchell, made by two special justices in the city of New York. By the affidavit of the mother of the child made before the magistrate, as recited in the bond, it appeared that the child was born on the 18th of March, 1841, and the complaint upon which the subsequent order was granted was not made until July, 1847.

The declaration set forth the bond, and the proceedings before the magistrates, upon which the order of filiation was made and the bond given. Among other conditions, the bond provided that the defendant, Mitchell, the reputed father of the child, “ should pay weekly such sum for the support of the said child, so born a bastard, and the sustenance of its mother, as has been ordered by the said justices as aforesaid, or shall at any time hereafter be ordered, by the court of general sessions of the peace of the city and county of New York; and shall and do fully and amply indemnify the city of New York, and every other town, county, or city, which may have incurred any expense, or may be put to any expense, for the support of

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sueb child, so born a bastard, or its mother, during her confinement and recovery therefrom, against all such expenses,” &c., &c. The declaration averred that the child so born was living, and chargeable to the city of New York, and for a breach of the condition of the bond, that the defendant, Mitchell, has not indemnified the city for the expenses incurred for the support of the child, nor paid the expense of its support, as provided in the bond, but that the same had devolved upon the city:

The defendants interposed separate demurrers, setting up various grounds of objection td the form of the declaration, and the validity of the bond declared on. It is unnecessary to specify the points of the demurrers, as the decision of the case, and the argument before the court, was confined to the validity of the condition of the bond. The suit was commenced in the supreme court, and afterwards transferred to this court.

H. 8. Mackay, for the defendants.

D. T. Walden, Jr., and T. TJ. Tomlinson, for the plaintiffs.

By the Court.

This action was brought against the defendants upon a bond executed by them under an order of filiation. _ To the declaration upon the bond, the defendants interposed demurrers, setting up various grounds of objection. Upon the argument, the only ground insisted on was one not specified in the demurrer, viz., that the condition of the bond upon which the action was brought, was broader than was authorized by the statute; that the bond not being a voluntary instrument, but executed in pursuance of a compulsory statute, must be precisely in accordance with it, and if it contain provisions not warranted by-the statute, it is void. Upon this point we were referred to the case of The People v. Meighan and others, ( 1 Hill, 298 ;) and there can be no doubt of the correctness of the general proposition, that where the bond-imposes further obligations than those provided by the statute, - or, in other words, contains a broader condition, it is void. .

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In this case, it is contended that tbe condition of tbe bond was too broad, because it embraced the sustenance of tbe mother during her confinement. Tbe child here bad been born several years at tbe time of tbe giving of tbe bond; and it is contended, that after tbe birth of tbe child,'a bond could only be required for its maintenance, and that it could have no retroactive effect for the sustenance of tbe mother.

The answer to all this is, that tbe bond in question was given under an order of filiation, and must be in pursuance of the provisions of the statute upon that subject. By a reference to tbe statute, (1 R. S. 651, § 47, 48, 49,) it will be perceived that the bond in question has literally followed the provisions there specified. It must therefore be valid, however superfluous any of its provisions may be. The bond is not only in conformity with the provisions of tbe statute, but follows its precise words..

Judgment for tbe plaintiff on the demurrer.