
    The People ex rel. Orville Crouse, App’lt, v. John E. Leavitt, Sheriff, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 11, 1891.)
    
    1. Bastardy—Order op filiation.
    In a bastardy proceeding brought in a county in which the poor are a town charge, the order of filiation required the defendant to pay a certain sum to the overseer of the poor “so long as said child shall continue chargeable to said county." Held, that the use of the word county instead of town was not prejudicial to the defendant, since the undertaking required of him was prescribed by § 851 of the Code, and the commitment recited that he was committed until he was discharged or gave an undertaking as prescribed by said section.
    2. Same.
    The order need not state to whom the sum for the support of the mother shall be paid, but such sum is to be included in the undertaking and is properly payable to the-overseer of the poor.
    Appeal from an order made by the county judge of Fulton county, dismissing a writ of habeas corpus and remanding the relator to the custody of the sheriff.
    
      Frank B. Townan, for app’lt; Philip Keck, for resp’t.
   Landon, J.

—The relator was committed to the jail of Frutón county by two justices of the peace, sitting in a bastardy proceeding instituted against him. The relator asked to be discharged because of alleged jurisdictional errors and defects in the order of the magistrates upon which the commitment was based.

Sections 850, 851, 852 of the Code of Criminal Procedure prescribe the practice and duty of the magistrates so far as the question presented is involved. Section 850.provides that: “If they determine that he is the father, they must make an order of filiation, spepifying therein the sum to be paid weekly or otherwise by the defendant for the support of the bastard; and if the mother be indigent, the sum to be paid by the defendant for her support during her confinement and recovery.”

The order herein is challenged as erroneous in two particulars.

Under the statute applicable to the support of the poor in Fulton county, each town is chargeable with the support of its own poor. Chap. 155, Laws 1886.

The order in question requires “ That the said defendant pay to the said overseer of the poor, for the support of the said bastard, the weekly sum of $1.50 so long as the said child shall continue chargeable to said county.” The use of the word “ county ” instead of “ town ” was in no way prejudicial to the relator, since the undertaking required of the relator is prescribed by § 851, and it appears by the commitment that the relator was committed until he should be discharged by the court of sessions “ or deliver an undertaking required by said justices as prescribed by § 851 of the Code of Criminal Procedure.” The addition, “so long as the said child shall continue chargeable to the said county,” was not required by the order to be inserted in the undertaking; no such provision is required by § 850 of the Code; it imposed no burden or penalty upon the relator, and subjected him to no illegal requirement It was, therefore, harmless surplusage.

The order of the magistrates further stated: “We finding the said mother is in indigent circumstances, we determine and order that the said defendant pay to the said -for the support of the said mother during her confinement and recovery therefrom the sum of fifteen dollars.” It is not stated in the order to whom the sum is to be paid. Section 850 does not require that it shall be so stated in the order. It was, however, properly payable to the overseer of the poor of the town. Section 851 requires that the undertaking to be given shall embrace this sum, in addition to the weekly allowance. The relator was thus instructed that it should be included in the undertaking which the order required to be given to the overseer of the poor, and the commitment recites in substance that such was the requirement of the order. The order is simply defective in appearance, but not in legal substance. It certainly imposed no illegal burden upon the relator, nor left him in ignorance of the means by which he could escape commitment.

The magistrates in their order certified the costs of arresting the •defendant and of the order of filiation as $43.20 and required the relator to pay them. The commitment recites that he refused to pay them, but the commitment does not require their payment as the condition of relator’s discharga In this respect less was required than ought to have been exacted.

Hothing has been required of the relator in excess of the jurisdiction of the magistrates to impose, and he has been favored by the omission of an exaction which ought not to have been waived. The order of the magistrates is not invalid because it •contains inoperative and unnecessary words, or omits what the law implies but does not require to be expressed.

Order affirmed.

Learned, P. J., and Mayham, J., concur.  