Summary
In People ex rel. Board of Police v. Shulman, 8 App. Div. 514, 40 N.Y. S. 779, the mother attempted to appeal from an order denying her motion that the magistrate be required to return to the county court the proceedings had by them in the prosecution.
Summary of this case from State v. SaxOpinion
July Term, 1896.
Thomas H. Larkins, for the appellant.
Lester F. Stearns, for the respondent.
At common law the father was under no legal liability to support his bastard child, and the liability which he is now under was created and exists solely by virtue of the statutes. ( Moncrief v. Ely, 19 Wend. 405; Birdsall v. Edgerton, 25 id. 619; Todd v. Weber, 95 N.Y. 181, 189; 1 Burn's Justice [13th ed.], 407.) The mother has no power at common law, or under the statutes of this State, to compel the father to support her during confinement, or to support the child after its birth. (2 Kent's Com. [13th ed.] 215.) The proceedings authorized by our statutes are solely for the indemnification of the civil divisions of the State from liability to support bastards. By title 5 of the Code of Criminal Procedure two independent proceedings are authorized, one against the father (§ 840 et seq.) and the other against the mother, if she possesses property in her own right (§ 857 et seq.) to compel either to support their bastard child.
The mother cannot institute a proceeding against the father nor the father against the mother, and in case a proceeding is instituted against either, by any one other than the officials authorized by the statutes, the magistrates acquire no jurisdiction. ( Wallsworth v. M'Cullough, 10 Johns. 93; Sprague v. Eccleston, 1 Lans. 74; Rivenburgh v. Henness, 4 id. 208; People ex rel. Bd. of Charities v. Davis, 15 Hun, 209.)
In Rivenburgh v. Henness ( supra) it was held that the officer who instituted the proceeding was a party to it, and in Stowell v. The Overseers of Volney (5 Den. 98) it was held that the officers instituting such a proceeding might discontinue it, in which case it was done in consideration of eleven dollars paid by the defendant.
In case the officers, after instituting a proceeding against the father, fail to prosecute it by reason of a settlement, legal or illegal, made with the defendant, or for any cause, the mother cannot prosecute the proceeding, because the statute confers no power on her to do so, and for the same reason the father would have no power to carry on a prosecution legally instituted by the officers against the mother in case they should discontinue it for any cause. The father has no pecuniary claim on the mother nor the mother on the father in respect to a child born or likely to be born a bastard. Neither is a party to a proceeding instituted against the other, and neither has any right to conduct, control or prosecute a proceeding instituted against the other. In case a proceeding is instituted against the father and an adjudication is made against him, or if a proceeding is instituted against the mother and an adjudication is made against her, he or she may appeal from the adjudication made against him or her, as the case may be. (Code Crim. Proc. § 851 et seq.) But the mother cannot appeal from any order or adjudication made in a proceeding against the father, nor can the father appeal from any adjudication or order made in a proceeding instituted against the mother.
We reach this conclusion without determining whether the board had power to make the settlement which was made in this case.
The learned county judge correctly decided the motion, and the order of the County Court should be affirmed.
All concurred.
Order affirmed.