
    (20 Misc. Rep. 160.)
    KIRKPATRICK v. CROWLEY.
    (Rockland County Court.
    April, 1897.)
    1. Bastardy—Proceeding against Putative Bather—Jurisdiction.
    Under Or. Code, § 839, providing that the town in which a bastard is born shall be liable for its support in case the father and mother fail to support it, a bastard is shown to be chargeable to a certain town, so as to-authorize the overseer of the poor thereof to institute a bastardy proceeding against the father, where it is proved that it was born in the town, and has been therein ever since; that the father neglected to support it; that the mother was unable to do so; and that the child had been supported by its maternal grandparents.
    2. Same—Disagreement of Justices—Hew Proceeding.
    Where the justices before whom a bastardy proceeding is brought fail to agree, there is a mistrial; and it may be discontinued, and a new proceeding brought before other justices.
    3. Same—Bormal Discontinuance.
    In such case, malting the- new complaint operates as a discontinuance ot the first proceeding without a formal motion for that purpose.
    Appeal from justice court
    
      Bastardy proceeding by Charles P. Kirkpatrick, as overseer of the poor, against John Crowley. From an order of filiation, defendant appeals.
    Affirmed.
    G-. Z. Snider, for appellant.
    R. S. Harvey; for respondent.
   TOMPKINS, J.

The defendant was first arrested, charged with being the father of a bastard child born of Annie Boyle, on a warrant issued by William W. Whyard, a justice of the peace of the town of Orangetown. The justice associated with himself another magistrate, and they proceeded to try the case, and, at the close of the evidence, were unable to agree, and made the following entry in the docket: “The justices were unable to agree that the defendant is the father of the child.” No further proceedings were taken before those justices. Thereafter, and on the 7th day of November, 1896, the overseer of the poor commenced the present proceeding, before Justice Cook, of the same town, who associated with, himself Justice Cooper. These magistrates tried the defendant, adjudged him to be the father of the bastard child, and ordered that he pay the sum of two dollars per week for the support of the child so long as it shall remain chargeable, etc. The defendant gave an undertaking under subdivision 2 of section 851 of the Criminal Code, and thus has an appeal in this court.

The defendant here contends that it does not appear that the bastard child is chargeable to the town of Orangetown. The Code (section 839) makes the father and mother of a bastard liable for its support, and further provides: “In case of their neglect or inability it must be supported by the county, city or town in which it is born.” The child was born in the town of Orangetown, and. has ever since been in that town. It appears that the father, whoever he may be, has neglected to support the bastard, and the mother, it appears, is unable to support it, and has not; the maternal grandparents having hitherto supported it and the mother. This, I think, was sufficient to make it chargeable to the town of Orange-town, and to justify the overseer of the poor in making the complaint and give the court jurisdiction.

The further claim is made that the justices had no jurisdiction to make the order appealed from, the reason assigned by the appellant being that the matter was still pending before the other magistrates. As has already been stated, the defendant was first arrested on a warrant issued by Justice Whyard, and proceedings-were thereafter had which resulted in a disagreement of the justices. No result was reached. This cannot be said to have been a trial.. It was a mistrial, and, although there is no special provision authorizing a new complaint before another justice, the complainant undoubtedly had a right to discontinue the proceedings before the-justices who had disagreed, and lodge a new complaint with another justice of the same town. It would have been useless to have tried the case again before the same magistrates, and it would have been unauthorized by law, and manifestly unfair, for Justice Whyard to-have called in a new justice as an associate, and proceeded to a retrial, because he (Whyard) had already formed an opinion one way or the other regarding the merits of the controversy. But it is claimed by the defendant and appellant that it does not appear that the former proceeding was discontinued or withdrawn. I do not deem it necessary that any formal motion or entry in the justice’s docket be made. The fact that there was a mistrial, and that the proceeding there was abandoned, and a new complaint made and proceeding instituted, in itself constituted a discontinuance of the former action. The plaintiff’s action in instituting this proceeding may be construed as a discontinuance of the former.

On the merits of the case, I find against the defendant. The testimony of the female is convincing of its truthfulness. The fact of intercourse at the times stated by her is not denied by the defendant. According to the table computing the period of gestation (contained in 2 Am. & Eng. Enc. Law, 156), the date of birth, September 11, 1896, indicates that the intercourse which brought about the conception took place between the 5th day of December, 1895, and the 27th day of February, 1896. The proof on the part of the people is conclusive that for about two years prior to February 9, 1896, the defendant was a frequent visitor at the mother’s house, quite, as often as twice a week, and on almost every occasion sexual intercourse was indulged in. She had no other visitors at the house. Defendant was her regular and steady company. The only testimony against this proof was given by the defendant’s brother Stephen, to the effect that on several occasions, and particularly in November and December, 1895, he had sexual intercourse with her on the roadside in South Nyack. He is not positive about the dates. The weather was certainly cold when the act is alleged to have occurred, in December. It is quite improbable that in December weather this act would take place out of doors, on the ground. It appears that Stephen never called upon the girl at her home, as did the defendant; nor is there proof of such intimacy between them as in any wise to corroborate his testimony. The defendant evidently considered himself to be the father of the child from the letter which he wrote, and which is in evidence, advising what means to use before the child was born to rid herself of the trouble. There are other matters which throw discredit upon the testimony of Stephen. The testimony of Thompson and Ginter is of a very unsatisfactory character. I find the defendant to be the father of the bastard child, *ud the order of filiation is accordingly affirmed.

Order affirmed.  