50 Misc. 350 | N.Y. App. Term. | 1906
The action was against the alleged surety upon an instrument, partly written and partly printed, dated the 30th of March, 1905, which recited that one Sam Lewitz was “ duly convicted by Joseph Pool, one of the city magistrates in and for said city” of Hew York, “of.being a disorderly person, that is to say, a person who has threatened to abandon and has abandoned his wife in said city without adequate support, and left her in danger of becoming a burden upon the public, and has neglected to provide according
Upon the trial, the plaintiff called but one witness, Frank Kelly, who deposed that he was the “alimony clerk” in the office of the commissioner of public charities of the city of Mew York and produced the instrument in suit from the files of his office. It was admitted in evidence, over the defendant’s objection, (1) that the magistrate’s authority to require the instrument to be given did not appear, (2), that the defendant’s execution of the instrument was not proven, the magistrate being without authority to take the acknowledgment, (3), that the instrument was without a seal and, therefore, not a bond as required by law, (4), that it was conditioned for the payment of the weekly sum therein mentioned to the commissioner of public charities for the boroughs of Manhattan and the Bronx, there being at the time no such official known to the law, and (5), that the instrument was ineffectual in that it was not executed by the principal, Sam Lewitz. The witness, also, was permitted, over the defendant’s objection, to testify to the amount of the weekly sum claimed to be due and unpaid without having been shown to be competent in that respect. Mo further proof was attempted by either party and the justice rendered
As we view it, the judgment is wholly unsupported by any competent proof of the execution by the defendant of the alleged instrument sued upon.
Proceedings for the prosecution of one charged with being a disorderly person in that he has abandoned his wife may be instituted under the provisions of the charter of the city of Yew York (Laws of 1897, chap. 378, as amd. by Laws of'1901, chap. 466), or those of the Code of Criminal Procedure, the difference between the several provisions being that, if the proceedings are under the charter, the security for the support of the wife must be taken in the name of the people of the State; that it must be in the form of a bond; into which the offender must enter with good and sufficient surety to be approved by the magistrate; that it can be re'inired after conviction only, and that, for a breach of its condition, the instrument must be prosecuted in the name of the commissioner of public charity of the city (§§ 686, 687); and, if under the provisions of the Code of Criminal Procedure, the security can be required only before conviction, or after conviction and commitment (Code Crim. Pro., §§ 901, 902, 907); that it must be an undertaking, with one or more sureties approved by the magistrate, in which the offender is not necessarily required to join (§ 901), and that, if forfeited, it must be prosecuted, if in the city of Yew York, in the name of the corporation of that city (§ 905). Bearing these differences in mind, it is obvious that the instrument in suit purports and is claimed to have been given in proceedings .instituted under the charter provisions. It- was given after the conviction of the offender, the convicted person is named as a party thereto, the obligors are in terms bound to the people of the State, and it is prosecuted in the name of the commissioner of public charities of the city of Yew York.
The police magistrates of the city of Yew York have jurisdiction, generally, within the city, of cases of the kind in which the instrument in suit purports to have been given; and it was not necessary, therefore, that the particular facts
The instrument in suit, however, was not shown to have been executed by the defendant. By section 937 of the Code of Civil Procedure, any instrument, except a promissory note, a bill of exchange, or a last will, if otherwise admissible, may be read in evidence, if acknowledged in the man-
Again, a recognizance is part of the record of the proceedings in which it is taken. aA bond given in such a proceeding is not to be considered merely as a contract between the parties. It is something more. It is part and parcel of a judicial proceeding, and unless the officer who required the party to give it * * had jurisdiction of the person and of the case, it is void.” People ex rel. Ritzenthaler v. Higgins, 151 N. Y. 570, 577. A recognizance is an obligation of record, and thus imports verity. 8 Am. & Eng. Ency. of Law (2d. ed.), 686. Moreover, the ‘ ssecurity prescribed by the provisions of the charter and Code of Criminal Procedure is the magistrate’s warrant for the discharge of the offender from custody. Thus it must' necessarily be a part of the record of the proceedings in the magistrate’s court. If relied upon as a record, it must he shown to have been produced from the possession of its lawful custodian, the magistrate’s court, in the absence of any provision of law requiring the record to be kept elsewhere.
We attach no importance to the objection that the instrument is not a bond, as required by the charter, because without a seal (Tiffany v. Lord, 65 N. Y. 310), in view of the provision of the Statutory Construction Law, section 16, that whenever a bond is by law authorized or required to be given, such authority or requirement shall be deemed to have been complied with upon the execution of an undertaking to the same effect.
Furthermore, the instrument is not to be invalidated because of a misdescription of the officer to whom the weekly payments therein provided for were required to be made. The commissioners of public charities of the several boroughs comprising the city of Hew York, having by law been superseded, at the time of the execution of the instrument, by the commissioner of public charities of the city of Hew York, it will be presumed that the latter was intended by the defendant as the person or official to whom the payments were to be made, there being no other person or. official to answer the description. He alone was authorized by law to prosecute the instrument and to receive payment of any sum or sums to grow due and payable thereunder. In such a case an omission or mistake in the name of the obligee or payee is cured by the provision of law, - and the obligee or payee designated by law will be presumed to have been intended as the person or official to receive payment. 4 Am. & Eng. Ency. of Law (2d. ed.), 645; Bay County v. Brock, 44 Mich. 45; cited with approval in State v. Wood, 1 Ark. 206; New York. African Soc. v. Varick, 13 Johns. 38; Wiser v. Blachly, 1 Johns. Ch. 607.
The errors in the admission in evidence of the instrument in suit, and hereinbefore pointed out, imperatively call for reversal of the judgment, and reference, therefore, to. other errors may seem mere supererogation. However, we shall briefly notice such for the guidance of the court below and counsel should it be deemed advisable to proceed further with the action.
The question asked of the plaintiff’s witness, Kelly. “TJpon this undertaking can you tell how much has been
A further objection to the judgment is made that the plaintiff was not shown to he the commissioner of public charities of the city of Hew York, de jure. Ho such objection was taken upon the trial and it was sufficient that it appeared that the plaintiff was the de facto commissioner. Ilis title to the office was not triable in this action.
The judgment should he reversed, and a new trial ordered with costs to the appellant to abide the event.
Soott and Trttax, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.