
    Michael J. Drummond, Commissioner of Public Charities of the City of New York, Respondent, v. Joseph S. McGarry, Impleaded with Atticus H. Mitchell, Appellant.
    (Supreme Court, Appellate Term,
    June, 1911.)
    Husband and wife — Abandonment and nonsupport — Security for support.
    A bond to the commissioner of public charities of the city of New York, for the faithful performance of an order made by a magistrate, requiring a husband to pay to the commissioner a certain sum weekly toward the support of his wife and child, is not a mere bond of indemnity; but, in an action thereon, the commissioner may recover the amount which the obligor was ordered to pay, and which he had failed to pay at the time of the commencement of the action.
    Appeal from a judgment of the Municipal Court of the city of Hew York, borough of Manhattan, fourth district, • in favor of the plaintiff, entered after a trial by the court without a jury.
    John F. Moroney, for appellant.
    Archibald R. Watson (Herman Stiefel, of counsel), for respondent.
   Page, J.

The plaintiff, as commissioner of charities, brought this action to recover on a bond in the sum of $260, given by one Mitchell as principal and the appellant McGarry as surety, for the faithful performance of an order, made by a magistrate, requiring Mitchell to pay to the commissioner of public charities $5 weekly and every “week for and toward the support of his wife and child, for the period of one year. Mitchell had paid during the year $15, and judgment was recovered in this action for $245 and costs. Thee appellant contends that this is a bond to indemnify the public authorities for such sums as they may have expended for the support of the wife and child, and that, defendant having proved that the wife had not received public charity, the judgment should have been for the defendant. Under the provisions of section 687 of the Greater Hew York charter, prior to the amendment of 1908, the Court of Appeals, by a vote of four to three, held that it was the intention of the Legislature that the bond required under that section should be a bond of indemnity, and that it was, therefore, necessary for the commissioner of charities to prove what sums he had disbursed for the support of the family of the principal on the bond, and, if nothing had been thus paid, nothing could be recovered. Goetting v. Normoyle, 191 N. Y. 368. This case was decided March 10, 1908. The Legislature immediately declared its intention by amending said section to read: “ That in an action brought upon the bond it shall not be necessary to prove the actual payment of money by the commissioner of public charities, but the neglect to pay the sum ordered to be paid, by competent authority, for the support of the wife and children, shall .be ,a breach of the undertaking, and the measure of damages shall be the sum ordered to be paid which was withheld at the time of the action.” Laws of 1908, chap. 3,57, which became a law May 19, 1908. The Legislature, by this amendment, which was drafted by the writer of this opinion, then a member of the cities committee- of the Senate, intended to make it clearly appear that it did not intend that the bond should be one of indemnity. It was not the intention of the Legislature, as contended by appellant, merely to change the burden of proof, but properly to impose the burden of support upon the husband and make effective the order of the magistrate requiring the husband to contribute the sum imposed toward the support of his family. This construction of the statute does not make the act unconstitutional, as appellant urges, as it changes a bond from one of indemnity to one of absolute payment. What the effect of the statute was upon bonds theretofore given, it is not necessary to decide. The bond was given - after the act was passed, and the act became as much a part of the undertaking of the parties to the bond as it would if written in the bond.

The judgment should he affirmed, with costs.

Bijur, J., concurs.

Seabury, J. I concur in the result, upon the authority of Hebberd v. Levin, 145 App. Div. 416.

Judgment affirmed.  