
    Adolph H. Goetting, as Commissioner of Public Charities for the City of New York for the Boroughs of Brooklyn and Queens, Respondent, v. Michael Normoyle and Bridget Lillis, Appellants.
    Second Department,
    April 19, 1907.
    Husband and wife — undertaking by disorderly person to support wife and children — security is given as indemnity only.
    The undertaking of one convicted as a disorderly person to support his wife and children given pursuant to section 685 et seq. of the charter of Greater New York is given to indemnify the city, and although the disorderly person does not make the weekly payments required there can be no recovery on the undertaking in the absence'of proof that the-wife and children have become a public charge and that money had been disbursed by the 'municipality on their behalf. .
    The fact that a specific weekly sum is required to be paid by the terms of the. charter of the city of New York is not controlling. The payments are to be made for the support of the abandoned wife and children and not as a penalty to punish wrongdoing.
    
      Appeal by the defendants, Michael Hormoyle and another, from a judgment of the Supreme Court in favor of,the plaintiff, entéred in the office of the clerk of the county of Kings on the 19th day of December, 1905, upon the decision of the court rendered after a trial at the Kings County Trial Term without a jury.
    
      G. A. Burgess, for the appellants. .
    • James D. Bell [David Joyce and John J. Delany with him on the brief], for the respondent.,
   Hirschberg, P. J.: .

This action is brought by the commissioner of public charities for the city of New York for the boroughs of Brooklyn and Queens. It is brought upon an undértaking given upon the conviction of the defendant Michael Hormoyle as a disorderly person in having failed to provide for his wife and children, who were in danger of becoming a burden upon the public. The defendants are Hormoyle and his surety. The undertaking was given pursuant toxsection 685 and subsequent sections of the Greater New York charter (Laws of 1897, chap. 378, as aind.). ' The undertaking-was executed on the 21st day of February, 1900, and provided for the payment by 'Hormoyle to the commissioner of' public charities of the sum of'fifteen dollars per week for the period of one year thereafter for the support of the wife and children of the accused. The action was commenced in July, 1901, alleging failure to comply with the condition of the undertaking for the,entire fifty-two weeks, and the recovery is for the full sum of seven hundred and eighty dollars. The answers'allegéd that the wife and children had been supported during the year, that none had become, a public charge, and that no money had been disbursed. by the community in the behalf of . any of them.

On the trial no evidence was given ; each side moved for judgment on the pleadings, and the judgment appealed frem was granted on the plaintiff’s motion.

The question presented is whether the undertaking compels payment absolutely or whether it is intended to provide for indemnity only. The respondent claims that failure, to make the weekly payments constitutes a forfeiture of the undertaking, and that it is -not competent for the defendants to prove as.a defense that the lius-. band during the year hasiully supported his wife and children.

The language of section 901 of the Code of Criminal Procedure provides in express terms that the undertaking to be given under like circumstances shall be to indemnify the county, city, village or town. While there is no mention of an indemnity in the Greater Hew. York charter (supra), I think the expression in sections 685 and 686 that the wéekly payment and the undertaking given to secure the same shall be for the support of the wife and children accomplishes the same object. The . contrary view was held in an-action upon a bond given in pursuance of 2 Revised Statutes (5th ed.), 903, section Í et seq., in People v. Pettit (3 Hun, 416), and the recognizance was held to. impose a penalty, not fbr the purpose of indemnity, but by way of punishment. That case, however,. was in effect reversed in the Court of Appeals (74 N. Y. 320), where it was decided that the conviction is not evidence of a súbsequent breach of the condition of the bond, but that it must be made to appear that subsequent- to the giving of the bond the person complained of has been guilty of the neglect charged against him. A similar view was adopted by the former General Term in this department in People ex rel. Kehlbeck v. Walsh (11 Hun, 292). To the same effect is the case- of Lutes v. Shelley (40 Hun, 197). The court there said (p. 201): “ The statute, is penal. • The burden is with the. plaintiff to establish a breach of the condition of the bond. The conviction had before the bond was made furnishes no evidence for that purpose.”

The fact that a specified weekly,sum is required to, be paid by the terms of the city charter is not controlling. The payments are to be made for the support of the abandoned wife and. children only and not as a penalty to pupisli wrongdoing.

The judgment should be reversed.

Woodward, Jenks, Rich and Hiller, JJ., concurred.

Judgment reversed and new trial-granted,, with posts' to abide the event. ■  