
    Supreme Court—Appellate Division—Second Department.
    June, 1906.
    THE PEOPLE v. JOHN CRISPI.
    (106 App. Div. 176.)
    1. Bastardy—Code Crim. Proc. Sec. 859—In New York City—Amount to be Paid May be Increased by Court of Special Sessions.
    The jurisdiction conferred upon the County Court by section 859 of the Code of Criminal Procedure to reduce or increase the amount to be paid under an order of affiliation in bastardy proceedings is conferred within the territorial limits of the city of New York upon the Court of Special Sessions of that city. (Laws of 1901, chap. 466, § 1409, subd. 3.)
    2. Same.
    The exercise of the jurisdiction to increase the amount directed to be paid must, however, be made upon the application of one of the officers mentioned in section 840 of the Code of Criminal Procedure, viz., a superintendent of the poor of the county where the distinction between town and county poor has been abolished, or, where such distinction is still maintained, an overseer of the poor or other officer of the almshouse of the town or city where the woman is.
    In the city of New York, such an application must be made by the commissioner of public charities who exercises the functions of a superintendent or overseer of the poor in other counties, and such application cannot be made by the corporation counsel on his own initiative.
    3. Same—Order Reviewable by the Appellate Division.
    Within the city of New York, orders of the Court of Special Sessions in bastardy proceedings are reviewable by the Appellate Division. (Laws of 1901, chap. 466, § 1414.)
    Appeal by the defendant, John Crispí, from' an order of the Court of Special Sessions of the second division of the city of Hew York, borough of Queens, entered in the office of the clerk of said court on the 13th. day of December, 1904, increasing the amount directed to he paid by the defendant under an order of filiation theretofore made in the action.
    Samuel Weehsler, for the appellant.
   Willard Bartlett, J.:

Within the city of ¡New York orders of the Court of Special Sessions in bastardy proceedings are reviewable by the Appellate Division. (Revised Greater N. Y. Charter [Laws of 1901, chap. 466], § 1414.) The contrary was held on the first appeal in Simis v. Alwang (48 App. Div. 529), by reason of the fact that certain statutory provisions bearing upon the question were not then brought to the attention of the court; but the point was reconsidered in Keller v. Cleary (56 App. Div. 466; 15 N. Y. Crim. 270), and upon the second appeal in Simis v. Alwang (61 id. 426; 15 N. Y. Crim. 467) ; and the appealability of such an order to this court may now be considered as fully established.

The order which this appeal brings' up for review was made under section 859 of the Code of Criminal Procedure, which provides in the latter part thereof that “ upon the application of any of the officers mentioned in section eight hundred and forty, the County Court of the county, upon ten days’ notice to those officers, or to the father and mother of the bastard, may reduce or increase the amount so directed to be paid ” by the original order. Section 859 of the Code of Criminal Procedure, in which this provision occurs, is made applicable to courts of Special Sessions in the city of ¡New York by subdivision 3 of section 1409 of the revised Greater ¡New York charter, in these words: They shall have exclusive jurisdiction in the first instance of all proceedings respecting bastards within The City of ¡New York, and the jurisdiction conferred by sections' eight hundred and thirty-eight to eight hundred and sixty inclusive of the Code of Criminal Procedure shall be exclusively exercised within said city by said courts.” Thus, it will be seen that the jurisdiction of the County Court to reduce or increase the amount directed to be paid under an order of affiliation in bastardy proceedings is conferred within the territorial limits of the city of ¡New York upon the courts of Special Sessions therein.

The exercise of that jurisdiction, however, where an increase is sought in the amount directed to he paid, must he made upon the application of one of the officers mentioned in section 840 of the Code of Criminal Procedure. Those officers are either a superintendent of the poor of the county where the distinction between town and county poor has been abolished, or where such distinction is still maintained, an overseer of the poor or other officer of the .almshouse of the town or city where the woman is. The commissioner of public charities in the city of New York discharges the functions of a superintendent or overseer of the poor in other counties (Revised Greater N. Y. Charter, §§ 660, 662, 684), and is plainly the officer who must make the application contemplated by section 859 of the Code of Criminal Procedure for an increase in the amount directed to be paid by an order of affiliation. In the present case there is absolutely nothing to show that the application was made by that officer or at the instance of any other officer having anything to do with the care of the poor. The proceeding was brought on by a notice of motion, signed by John J. Delany, corporation counsel, and addressed to John Crispí in these words: Please take notice that on the annexed affidavit of Catherine Giglio, a motion will be made before this court to be held at the Town Hall, Jamaica, on the 15th day of November, 1904, at the opening of the court on said day, or as soon thereafter as counsel can be heard, why the amount ordered by this court to be paid by said John Crispí, for the support of the child of Catherine Giglio should not be increased, and for such other and further relief as to the court may seem just.” There is not a word in this notice to indicate in whose behalf or by what authority it is given; nor is there anything in the papers 'by which it was accompanied to show that the commissioner of public charities or any other officer had anything whatever to do with the proceedings. The corporation counsel has no power to institute a proceeding of this sort on his own motion, and it cannot oe inferred, in the utter absence of any assertion or evidence on the subject, that in so doing he assumed to act for any one officer of the municipality rather than another, or for any officer at all. I think this is a substantial defect, which _ cannot be overlooked and which is fatal to the order appealed from. The Legislature has seen fit to declare in section 859 of the Code of Criminal Procedure that an order of this character may be made upon the application of certain specified officers, and I think that the clear import of the enactment is that it cannot otherwise be entertained. It is easy to perceive a good reason for the limitation, inasmuch as a public officer would hardly be likely to apply for an increase without satisfactory evidence that it ought to be granted, while it is by no means impossible that the mother, if at liberty to make such an application without any official intervention, might be prompted to do so by malicious or vengeful motives toward the father of her child. However this may be, the requirement of the statute is so plain that it cannot be disregarded, and the order under review must be reversed because it does not appear to have been made on the application of any of the officers authorizd by law to apply therefor.

Woodward, Jerks, Rich and Miller, JJ., concurred.

Order of the Court of Special Sessions reversed.  