
    James H. Tully, Commissioner of Public Charities of the City of New York, Respondent, v. Ida Lewitz, Appellant.
    (Supreme Court, Appellate Term,
    April, 1906.)
    Bonds — Breach — Pleading — Complaint need not set forth facts authorizing magistrate who required bond to act; Evidence—"Acknowledgment before police magistrate not evidence of execution — A record to be admissible as such must be shown to have been produced by lawful custodian: Execution and formal requisites — Distinction between bond and undertaking — Obligee — Error in official title disregarded; Conditional execution.
    Acknowledgment — Who may take acknowledgment — A police magistrate may not take acknowledgment.
    Witnesses — Capacity and competency of witnesses in general — As depending on knowledge of facts.
    Officers — Officers de facto — Rights and powers.
    In an action against the surety on an instrument purporting to be an undertaking which recites the conviction of the principal by one of the city magistrates of the city of New York of being a disorderly person, in that he had abandoned his wife, and which purports to have been signed by the surety only, and is without a seal or its equivalent, and purports to bind the surety to the people of the. State of New York for the payment by the principal to the Commissioner of Public Charities for the boroughs of Manhattan and the Bronx of the amount required by the order of conviction, it is not necessary that the particular facts which authorized the magistrate to act in the proceeding should be alleged and proved as a part of the plaintiff’s case.
    But where no proof of the execution of the instrument was offered upon the trial of such action except a certificate of acknowledgment before the city magistrate, it was held that its execution was not sufficiently proved.
    Such an instrument, if relied on as a record, must be shown to have been produced from the possession of its lawful custodian, the magistrate’s court; and proof of its production from the files of the Commissioner of Charities will not authorize its admission in evidence.
    Such an instrument is not invalid because not in the form of a bond, as required by the statute, as the Statutory Construction Law (§ 16) provides that such requirement shall be satisfied by the execution of an undertaking to the same effect; nor is it invalid because the officer to whom the payment was provided to be made had been superseded by the Commissioner of Public Charities of the .city of New York, as it will be presumed, since there is no other person to answer the description, that the latter was intended.
    But, although it is not essential in general to the validity of an undertaking that the principal shall unite in it, in the present case it appears by fair inference from the facts that the surety did not intend to waive the execution of the instrument by the principal or that the instrument should be effectual without his signature.
    The alimony clerk in the plaintiff’s office is not to be presumed competent to testify as to the amount which has been paid upon the undertaking by the defendant in the absence of proof that he has knowledge upon the subject.
    To enable the plaintiff to maintain an action upon the undertaking it is sufficient that he is de facto the Commissioner of Public Charities of the city of New York; it is not necessary that he is shown to hold the office 'de jure.
    
    Appeal by the defendant from a judgment of the Municipal Court of the city of Hew York, third district, borough of Manhattan, rendered for the plaintiff in an action against the alleged surety upon an instrument purporting to be an undertaking, given upon the principal’s discharge from custody in proceedings before one of the police magistrates, which terminated in the principal’s conviction as a disorderly person in that he abandoned his wife, leaving her without.adequate means of support.
    Charles Goldzier, for appellant.
    John J. Delany, Corporation Counsel (Herman Stiefel), for respondent.
   Bischoff, J.

The action was against the alleged surety upon an instrument, partly written and partly printed, dated the 30th of March, 1905, which recited that one Sam Lewitz was “ duly convicted by Joseph Pool, one of the city magistrates in and for said city” of Hew York, “of.being a disorderly person, that is to say, a person who has threatened to abandon and has abandoned his wife in said city without adequate support, and left her in danger of becoming a burden upon the public, and has neglected to provide according to his means for his said wifeand that, “ hy an order made by said city magistrate, convicting as aforesaid, on the 28th day of March, 1905, it was determined that the above named Sam Lewitz should pay to the Commissioner of Public Charities, for the boroughs of Manhattan and the Bronx, of the city of Mew York, the sum of four ($4) dollars, weekly, and every week, for and towards the support of his said wife, for the period of one year next ensuing.” In form the instrument purported to bind the said Sam Lewitz and the defendant, Ida Lewitz, 'separately, each in the sum of two hundred and eight dollars, to the people of the State of Mew York, for the payment to the said commissioner of the weekly sum for the period mentioned. It purported to have been signed by the defendant, Ida Lewitz, only, and to have been acknowledged by her before the magistrate therein named, in form as required for conveyances of real property to entitle them to be recorded, and bore no seal or the equivalent of a seal of the party who executed it.

Upon the trial, the plaintiff called but one witness, Frank Kelly, who deposed that he was the “alimony clerk” in the office of the commissioner of public charities of the city of Mew York and produced the instrument in suit from the files of his office. It was admitted in evidence, over the defendant’s objection, (1) that the magistrate’s authority to require the instrument to be given did not appear, (2), that the defendant’s execution of the instrument was not proven, the magistrate being without authority to take the acknowledgment, (3), that the instrument was without a seal and, therefore, not a bond as required by law, (4), that it was conditioned for the payment of the weekly sum therein mentioned to the commissioner of public charities for the boroughs of Manhattan and the Bronx, there being at the time no such official known to the law, and (5), that the instrument was ineffectual in that it was not executed by the principal, Sam Lewitz. The witness, also, was permitted, over the defendant’s objection, to testify to the amount of the weekly sum claimed to be due and unpaid without having been shown to be competent in that respect. Mo further proof was attempted by either party and the justice rendered judgment for the plaintiff in the amount claimed, twenty-eight dollars, and costs.

As we view it, the judgment is wholly unsupported by any competent proof of the execution by the defendant of the alleged instrument sued upon.

Proceedings for the prosecution of one charged with being a disorderly person in that he has abandoned his wife may be instituted under the provisions of the charter of the city of Yew York (Laws of 1897, chap. 378, as amd. by Laws of'1901, chap. 466), or those of the Code of Criminal Procedure, the difference between the several provisions being that, if the proceedings are under the charter, the security for the support of the wife must be taken in the name of the people of the State; that it must be in the form of a bond; into which the offender must enter with good and sufficient surety to be approved by the magistrate; that it can be re'inired after conviction only, and that, for a breach of its condition, the instrument must be prosecuted in the name of the commissioner of public charity of the city (§§ 686, 687); and, if under the provisions of the Code of Criminal Procedure, the security can be required only before conviction, or after conviction and commitment (Code Crim. Pro., §§ 901, 902, 907); that it must be an undertaking, with one or more sureties approved by the magistrate, in which the offender is not necessarily required to join (§ 901), and that, if forfeited, it must be prosecuted, if in the city of Yew York, in the name of the corporation of that city (§ 905). Bearing these differences in mind, it is obvious that the instrument in suit purports and is claimed to have been given in proceedings .instituted under the charter provisions. It- was given after the conviction of the offender, the convicted person is named as a party thereto, the obligors are in terms bound to the people of the State, and it is prosecuted in the name of the commissioner of public charities of the city of Yew York.

The police magistrates of the city of Yew York have jurisdiction, generally, within the city, of cases of the kind in which the instrument in suit purports to have been given; and it was not necessary, therefore, that the particular facts which authorized the magistrate to act iu the proceedings recited in the instrument should be averred or proved as a part of the plaintiff’s case, in the first instance. As was said per Bronson, Ch. J., in People v. Kane, 4 Den. 530, 545: “ It is undoubtedly a well settled and highly important principle, chat before any one can be affected by the judgment or order of a court or officer of special or limited jurisdiction, it must not only appear that the court or officer had authority to act in cases of that kind, but that jurisdiction had been acquired in the particular case. But there is an obvious distinction between cases where a charge or burden is attempted to be fastened upon a party by a proceeding in invitum, and those where the charge or burden springs from his own voluntary "act. Here the defendant went before an officer duly authorized to let to bail, and subscribed a recognizance for the appearance of Murray, to answer a charge of forgery; and the instrument has been filed of record; and I cannot think the recognizance void because it fails to recite the particular facts which led to the taking of it; nor that it is necessary in declaring to make any averment by way of fortifying or upholding the record." The case cited overruled People v. Koeber, 7 Hill, 43, and People v. Young, Id. 45, and was approved in Champlain v. People, 2 N. Y. 82, where the court, per Ruggles, J., said: “ But where, as in the case of a recognizance, it appears to be the voluntary act of the party, the presumption is and ought to be in favor of the regularity of the proceeding which led to it, and of the validity of the instrument itself, until the contrary be shown, or unless, the want of authority to take it appear upon the paper itself. In this case the commissioner had a general authority to take bail in all cases; and the condition being that the defendant appear and answer to an indictment to be preferred against him for forgery, sufficiently shows that he was charged with that crime"

The instrument in suit, however, was not shown to have been executed by the defendant. By section 937 of the Code of Civil Procedure, any instrument, except a promissory note, a bill of exchange, or a last will, if otherwise admissible, may be read in evidence, if acknowledged in the man-net- and form prescribed by law for the acknowledgment of conveyances of real property to entitle them to be recorded, without further proof of its due execution; and, by section 248 of the Beal Property Law (Laws of 1896, chap. 547), such acknowledgments, if taken within the State, must be before a justice of the Supreme Court, a judge, clerk, deputy clerk, or special deputy clerk of a court within the district where such judge, clerk, deputy clerk, or special deputy clerk, is authorized to perform official duties, a notary public, or the mayor or recorder of a city, a justice of the peace, surrogate, special surrogate, special county judge, or commissioner of deeds. Section 6 of the Statutory Construction Law (Laws of 1892, chap. 677) provides that the term judge” shall be construed to mean every judicial officer, authorized alone, or with others, to hold or preside over a court of recordand, as a police magistrate of the city of New York answers the description of neither class of persons authorized to take acknowledgments, it necessarily follows that the attempted acknowledgment to the instrument in sxiit was ineffectual to render the instrument admissible in evidence.

Again, a recognizance is part of the record of the proceedings in which it is taken. aA bond given in such a proceeding is not to be considered merely as a contract between the parties. It is something more. It is part and parcel of a judicial proceeding, and unless the officer who required the party to give it * * had jurisdiction of the person and of the case, it is void.” People ex rel. Ritzenthaler v. Higgins, 151 N. Y. 570, 577. A recognizance is an obligation of record, and thus imports verity. 8 Am. & Eng. Ency. of Law (2d. ed.), 686. Moreover, the ‘ ssecurity prescribed by the provisions of the charter and Code of Criminal Procedure is the magistrate’s warrant for the discharge of the offender from custody. Thus it must' necessarily be a part of the record of the proceedings in the magistrate’s court. If relied upon as a record, it must he shown to have been produced from the possession of its lawful custodian, the magistrate’s court, in the absence of any provision of law requiring the record to be kept elsewhere. Proof, therefore, that it was produced from the files of the commissioner of public charities was not competent for the admission of the instrument sued upon in evidence.

We attach no importance to the objection that the instrument is not a bond, as required by the charter, because without a seal (Tiffany v. Lord, 65 N. Y. 310), in view of the provision of the Statutory Construction Law, section 16, that whenever a bond is by law authorized or required to be given, such authority or requirement shall be deemed to have been complied with upon the execution of an undertaking to the same effect.

Furthermore, the instrument is not to be invalidated because of a misdescription of the officer to whom the weekly payments therein provided for were required to be made. The commissioners of public charities of the several boroughs comprising the city of Hew York, having by law been superseded, at the time of the execution of the instrument, by the commissioner of public charities of the city of Hew York, it will be presumed that the latter was intended by the defendant as the person or official to whom the payments were to be made, there being no other person or. official to answer the description. He alone was authorized by law to prosecute the instrument and to receive payment of any sum or sums to grow due and payable thereunder. In such a case an omission or mistake in the name of the obligee or payee is cured by the provision of law, - and the obligee or payee designated by law will be presumed to have been intended as the person or official to receive payment. 4 Am. & Eng. Ency. of Law (2d. ed.), 645; Bay County v. Brock, 44 Mich. 45; cited with approval in State v. Wood, 1 Ark. 206; New York. African Soc. v. Varick, 13 Johns. 38; Wiser v. Blachly, 1 Johns. Ch. 607.

The errors in the admission in evidence of the instrument in suit, and hereinbefore pointed out, imperatively call for reversal of the judgment, and reference, therefore, to. other errors may seem mere supererogation. However, we shall briefly notice such for the guidance of the court below and counsel should it be deemed advisable to proceed further with the action.

As contained in the record the instrument sued upon appears ineffectual because not executed by the defendant’s principal. That the principal did not “enter” into the obligation in conformity with the charter provision is of no importance except as bearing upon the intention of the defendant hereinafter noticed. Her recourse to the principal, in the event of an actual liability, was 'complete without his joinder, and the provision requiring him to join in the execution' of the instrument was obviously intended only as additional security to the obligee, which could be waived, and was waived if the instrument was delivered by the defendant knowing or intending that her principal’s discharge from custody would follow, without more, and such delivery was acted upon by the magistrate. In that: case the defendant would be estopped from thereafter questioning the validity of the instrument for her principal’s nonjoinder therein. As to this, however, the record is entirely mute. Ordinarily the burden is upon the surety to show that delivery of the obligation to the obligee, executed by the surety only, was conditioned upon its execution also by others named as partió thereto (Chouteau v. Suydam, 21 N. Y. 119, 181), and such, we think, appears from fair inference from the facts, so far as they are contained in the record. Presumptively, the magistrate and the defendant, knew of the charter provision which required the principal to join and intended'to comply therewith. The instrument was prepared to be signed, in form, by both principal and surety, evidence of such intention. Execution by the one had necessarily to precede that of the other. So far it appears to have been the mutual intention of the magistrate and the defendant that the instrument should be signed by the principal as well. Without anything, therefore, to show that the officiating magistrate in any way acted upon the delivery to him of the instrument in its apparently incomplete condition we are unable to say that it was the defendant’s intention, or that her conduct led the magistrate to believe that the instrument should be effectual without the principal’s signature.

The question asked of the plaintiff’s witness, Kelly. “TJpon this undertaking can you tell how much has been paid try the defendant ? ” was so obviously incompetent that comment thereon seems unnecessary. It nowhere appeared that the witness had any knowledge upon the subject, and we cannot infer, from the fact alone that he was the “ alimony clerk” in the office of the commissioner of public charities, that he had.

A further objection to the judgment is made that the plaintiff was not shown to he the commissioner of public charities of the city of Hew York, de jure. Ho such objection was taken upon the trial and it was sufficient that it appeared that the plaintiff was the de facto commissioner. Ilis title to the office was not triable in this action.

The judgment should he reversed, and a new trial ordered with costs to the appellant to abide the event.

Soott and Trttax, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  