
    John W. Keller, Commissioner of Charities for the Borough of Manhattan and The Bronx, Respondent, v. Theodore Foleron et al., Appellants.
    (Supreme Court, Appellate Term,
    December, 1901.)
    New York city — Adultery of wife during the term not a defense to a bond given by her husband, as a disorderly person, to support her and her children.
    Adultery of a wife, during the term of a one-year bond given for her support and that of her children, under the charter of the city of New York (L. 1897, eh. 378, § 686), by her husband as a disorderly person convicted of having failed to support her and her children, is not a defense to any of the parties to the bond, in an action brought upon it to recover stipulated weekly payments in default.
    Appeal by the defendants from- a judgment of the Municipal Court of the city of New York, third district, borough of Manhattan.
    Howe & Hummel (David May, of counsel), for appellants.
    John Whalen, Corporation Counsel, and Herman Stiefel, assistant, for respondent.
   McAdam, P. J.

The plaintiff recovered a judgment against the defendants — principal and surety — on a bond given in the Magistrate’s Court of the city of Hew York for the seventh district, for forty-nine dollars, seven weekly payments due on said bond, and the defendants have appealed.

The bond was given after the conviction of Foleron, the principal, as a disorderly person in failing to support his wife and children.

The magistrate, under the provisions of section 685 of the charter of the Greater New York (Laws of 1897, chap. 378), therein applicable to such cases, required Foleron to pay $7 weekly to the commissioner of charities for the support of his wife and children during the year next ensuing, and to give a bond in $364 that he would make these payments and be of good behavior during that period. The defense urged by the defendants in the court below was that, after the execution of the bond and before the expiration of the year, the wife of Foleron committed adultery and lived in adulterous intercourse with a man, whose name is not given, at a house in Thirty-fourth street, this city.

The court declined to permit the defendants to prove this defense, and the exception to the ruling is fatal, unless the evidence excluded is to be regarded as immaterial to the issue and as constituting no defense, even if true.

The law regulating the bond will be found in section 686 of the charter (Laws of 1897, chap. 378), and is an adoption of that which prevailed under section 1456 of the New York Consolidation Act.

The charter provides (§ 685) that “ Every person in The City of New York, as constituted by this act, who actually abandons his wife or children without adequate support, or leaves "them in danger of becoming a burden upon the public, or who neglects to provide for them according to his means-, or who threatens to run away and leave his wife and children a burden upon the public, may be arrested upon a complaint made under oath to a city magistrate and a warrant thereon issued, and brought before such magistrate, as provided by section nine hundred of the code of criminal procedure. And if thereupon it shall appear by the confession of the defendant or by competent testimony that he is guilty of the charge, the said magistrate shall make an order specifying a reasonable sum of money to be paid weekly for the space of one year thereafter by such defendant to the commissioner of public charities * * * for the support of the wife or children.” Section 686 provides that “Any person convicted * * * shall-, upon being served with such order, enter into bond to the people of the state in such .sum as such city magistrate shall direct, with good and sufficient surety to be approved by the said city magistrate, that such person will pay weekly for the space of one year such sum for the support of the wife or children, or either or any of them, as has been ordered as aforesaid, to the commissioner,” etc.

Under this form of obligation, the obligors to the bond become charged whenever there is a failure to pay according to its terms, and the obligation continues until all of the payments called for -by the instrument are made. People v. Ehrsam, 41 N. Y. St. Repr. 625; S. C., 16 N. Y. Supp. 527.

The defendants rely upon People v. Pettit, 74 N. Y. 320, wherein the defendants were sued upon a recognizance given under the statute, whereby they in substance undertook, as in section 901 of the Code of Criminal Procedure, that the offender would support his wife and- children and will indemnify the-county * * * against their becoming, within one year, a. county charge.”

The obligation in that case was purely ope of indemnity, and in order to establish a breach of that particular bond, the prosecution was bound to prove affirmatively that the defendant hack neglected to provide for his wife and children, and the defendant, on the other hand, had the right to negative such proof by stating, that he had supported his wife and children or had offered to furnish them a home which they refused to accept. People v. Pettit, supra; Lutes v. Shelley, 40 Hun, 197.

That question was by the statute and by the very language of the bond left open for adjudication whenever it presented itself.

By the charter of the Greater New York (supra), the conviction of the offender and the giving of the bond purposely close all controversy for one year thereafter. Such were evidently the-purpose and intent of the charter provisions.

Prior to conviction, the defendant might have offered as a complete defense evidence of the infidelity of the wife (People ex rel. Keller v. Shrady, 40 App. Div. 460; People v. Brady, 13 Misc. Rep. 294; 15 Am. & Eng. Ency. of Law [2d ed.], 889; Culley v. Charman, L. R. [7 Q. B. Div.] 89; State v. Scguestzer, 6 L. R. A. 125; 1 Nelson Divorce, § 299), but under the procedure regulated by the charter, after the accused has once given the bond, promising absolutely to pay a weekly stipend for one year, nothing is left open for future litigation,' and if the parties are living and undiVoreed, the subsequent misconduct of the wife constitutes no defense to the principal or surety of the bond, the only question open being whether the conditions of the bond in respect to promised payments have been complied with.

In People v. Mitchell, 2 T. & C. 172, the defendant was convicted as a disorderly person for failing to support his wife, and required to give a bond in $200. TJpon the examination the defendant, in excuse, testified that there was pending in the courts an action for divorce brought by him against his wife, and that there was an order existing requiring him to pay her $4 per week alimony during the pendency of the suit. The court, in sustaining the conviction on certiorari, said: The supreme court, by no order they can make, short of granting a divorce, can cast upon the public the burden of supporting the legal wife of a man able to support her, or to absolve the husband from that duty.”

Death of either party to the marriage would dissolve the relation, as of course.

It is probably as well that the charter will bear the construction that the liability of parties upon this class of obligations continues during the year the bond is to run, unless the ties which bind the parties have, in the meantime, by some legal method been severed. This is particularly so where, as in this case, children are concerned.

We hold that the court below properly excluded the evidence-offered, and that the judgment must be affirmed, with costs.

MacLean and Scott, JJ., concur.

Judgment affirmed, with costs.  