
    William H. Burnham, as Overseer of the Poor of the Town of Groton, Respondent, v. Amos Tryon, Appellant.
    Third Department,
    March 7, 1906.
    Bastardy—defendant adjudged to be the father of a child to be born not relieved from costs although the child is still-born—when erroneous order discharging defendant should be vacated.
    A defendant who has been adjudged to be the father of an illegitimate child about to be born is not relieved from liability for costs of an appeal ,to the County Court, although he is subsequently discharged under section 866 of the Code of Criminal Procedure on the ground that the child was still-born.
    When such order of discharge by error orders that the .defendant be discharged from liability on an undertaking given on appeal tó the County Court, which undertaking was not in fact given, the court has power to vacate such erroneous order on notice, although the plaintiff had appealed therefrom.
    • Appeal by the defendant, Amos Tryon, from an order of the County Court of Tompkins county, entered in the office of the clerk of the county of Tompkins on "the 12th day of January, 1904.
    The defendant, on 'the complaint of the plaintiff, was adjudged upon a trial before two justices of the peace to be the father of a child likely to be born a bastard.which would be chargeable upon the plaintiffs town. The justices made an order of filiation and certified their reasonable costs of arresting the defendant and of the order of filiation to be the sum of forty-two dollars and fifty cents, which costs the defendant paid and served a notice of appeal from the order of filiation to. the County Court, ■ Before the appeal was heard the child was stillborn. The counsel for the. par ties., appeared at the next term of the County Court- and on showing that the child had not been born alive an order was made under; section 866 of the Code of Criminal Procedure discharging the-, defendant “ from the obligation of his undertaking ” and directing, the plaintiff to pay to the defendant, or to his attorney, the amount paid by the defendant to secure his' appeal and for costs of the-appeal. The-plaintiff’s counsel objects, to. the provision contained therein requiring the plaintiff to refund to the. defendant. the -..costs paid by the latter and thereafter appealed from the order. When the plaintiff’s attorney undertook to prepare his papers on such appeal he was unablerio.find that any undertaking .had been, given . by the defendant under either subdivision of .section. 851 of the Code of Criminal Procedure and no undertaking of any kind whatever could be found in the clerk’s office, or elsewhere. Plaintiff’s attorney then made a motion on notice- at a term .of the. County Court held by the same judge who made the- previous order' discharging the defendant to set aside and cancel such order, and from an order granting that motion the defendant has appealed.
    
      W. W. Hare, iov the appellant.
    
      G. M. Stoddard, for the respondent.
   Chester, J.:

The controversy appears to be wholly over the question of-, costs. The County Court held on discharging the defendant-under section 866 of the Code of Criminal Procedure when it appeared that- the child was not born' alive, that the defendant was entitled to- costsn and disbursements as a matter-of- right and, therefore, directed the..plaintiff to refund to the- defendant the- amount paid by him to secure an appeal from the order of filiation. That ¡section simply-authorizes the court or magistrates upon proof of the facts therein;.; stated to discharge the defendant from custody, if he is in custody,' or from the obligation of an undertaking, if he. has given one.. There is nothing said therein on the subject of costs. The. order-discharging the defendant was in no sense a determination of his - appeal to the County Court in his favor, so-as to entitle him to costs under section 873 of, the Code of Criminal Procedure; nor did it in any wise affect the correctness of the determination of the magistrates adjudging him to be the father, of the. child. The costs were incurred in that proceeding and were certified to by the magistrates as the reasonable costs of arresting the defendant and of the order of filiation as required by section 850 of the Code of Criminal Procedure, and by section 851 of such Code the defendant is expressly required to pay the amount so certified for such costs. The fact that the defendant is discharged under section 866 of such Code because of facts arising subsequent to the order of filiation is no reason why the costs lawfully incurred and imposed upon him should be refunded to him by the plaintiff, and the court was in error in requiring them to be refunded.

That part of the order discharging the. defendant was evidently made upon the erroneous supposition that an undertaking had been given by him. The court in granting the order to vacate necessarily passed adversely upon the contention of the defendant, that he had given an undertaking. Therefore, there was no need of allowing an order to stand which discharged him from an obligation which did not exist.

The court which had inadvertently made the. order discharging him and which improperly relieved him from the costs by requiring the plaintiff to refund the amount ■ thereof to him, had power. to vacate the order on notice and it was a proper exercise of power so. to do. This is so notwithstanding the order had been appealed from, as the plaintiff’s inability to find the necessary papers in the clerk’s office where they should have been and the defendant’s failure to give the undertaking, practically made it impossible for the plaintiff ever to present his appeal to the court for a determina? tion thereof on the merits.

The order should be affirmed, with ten dollars. costs and disbursements.

All concurred.

Order affirmed, with ten dollars costs and disbursements.  