14 Daly 66 | New York Court of Common Pleas | 1886
In determining the effect of the Code of Civil Procedure upon other acts of the Legislature, we are bound to hold that the last nine chapters of the Code were enacted on the 12th day of January, 1880 (§ 3355, Code Civ Pro.). Section 1 of chapter 389 of the laws of it>62 was in force, and that section conferred “ upon district courts of the City of New York jurisdiction of actions in which the people of this State are a party, where such actions are brought by the overseers of the poor or the commissioners of public charities and correction upon bastardy and abandonment bonds, and the amount demanded or recovered does not. exceed $500.”
This act of 1862 is “ the special statutory provision ” mentioned in subdivision three of section 3215 of the Code of Civil Procedure. That jurisdiction having been vested in the district courts on January 12,1880, by section 3215, was not divested by the repeal of the first clause of the act of 1862, which was effected by chapter 245 of the Laws of 1880, which took effect on September 1, 1880.
The only changes in the law under consideration that have been made since the Code went into operation are those that have been introduced by the Code of Criminal Procedure. A bond is no longer taken in a bastardy case, the instrument called an undertaking having been substituted for it, and the party plaintiff in an action on the undertaking is not the People of the State of New York, but the Mayor, Aldermen and Commonalty of the City of New York (§ 882, and chapters one and two of title five, Code Criminal Procedure)_.
Though a bond is not identical with an undertaking, and though in certain cases it may well be said .that a statutory
It was by looking beneath the letter of the statute in order to forward the intention of the Legislature that, in construing statutes, courts have held that the word executors included administrators, and that the word persons included corporations (§698. Smiths Const. & Stat. Construction). Sections 729, 730 and 810-816 of the Code of Civil Procedure place bonds and undertakings in the same category, and unike the provisions that apply to one applicable to the other. No pos-, sible reason can be suggested why bonds should be prosecuted in district courts, and why undertakings should not be. The undertaking is merely a simplified bond without a seal. A penal bond, ‘•hough in the ancient form, may now be sued upon as though its condition be even a covenant to pay the sum, or perform the act, specified in the condition (§ 1915, Code Civ. Pro.); that is to say, it may be treated as if it were, an undertaking. This is a ease, therefore, for the application of the maxim, Dl>i lex'esi speeiaiis, et ratio est generalis, gencraliter cst aecipienda.
Nor do Í think that the jurisdiction of the district courts, does not. extend to actions upon undertakings because the. Legislature has-seen fit to provide that actions upon them shall he brought in the name of the city instead of in the-name of the people of the State. A court having jurisdiction of the parties and the subject matter, cannot lose jurisdiction through the substitution of the real for a nominal plaintiff. The avails of the recovery go into the city
The form of the obligation upon which this suit is brought has been severely, but justly, criticized. It is in form neither a bond nor an undertaking. It bears some resemblance to a recognizance, though it is not one. It ought to be banished from the police courts. Defective in form as it is, it might, perhaps, be upheld under the liberal provisions of section 729 of the Code of Civil Procedure as to its deficiencies.
I think that the district court erred in rejecting proof that the proceeding in which the obligation was executed was coram non judice. The Code of Criminal Procedure <§§ 848, 849, 850, 851, 852, 853, 859, 801, 862, 863) imperatively requires that two magistrates shall be together to conduct the proceedings. One magistrate alone has no power to act, and his orders are null and void. Validity is not imparted to his void adjudications by having the record of his proceedings signed by another magistrate.
If it be true that only one magistrate conducted the examination and made the order of filiation, he was acting without jurisdiction, and had no power to hold the prisoner and exact an undertaking. This want of jurisdiction could l)c shown whenever any step was taken to enforce the void .adjudication. As the order of filiation was void, so also was 1 lie undertaking given in pursuance of it (Commonwealth v. Loveridge v. 11 Mass. 337; Corning v. Slosson, 16 N. Y. 294; Morss v. Morss, 11 Barb. 510).
It was perfectly proper for the defendant to contradict the record for the purpose of proving that the court was
It was error, therefore, for the district court to reject the evidence offered by the defendant, and the judgment should be reversed.
As the proper party plaintiff is not before the court, a new trial will not be ordered. The appellant is allowed costs of the appeal.
