
    PEOPLE ex rel. COMMISSIONERS OF PUBLIC CHARITIES AND CORRECTION OF THE CITY OF NEW YORK v. DANDO.
    
      New York Common Pleas, General Term;
    
    
      December, 1886.
    1. Jurisdiction of N. Y City district courts.] Since undertakings' have been substituted by the law, in place of bonds, in bastardy proceedings and abandonment, cases, the statute (L. 1862, c. 3SU, § 1), which gave the district courts of the City of New York jurisdiction of actions by overseers of the poor or commissioners of public charities and correction, in the name of the people upon such bonds, is to be interpreted as extending to actions upon such undertakings.
    
      Undertaking when, synonymous with, bond]. An undertaking being merely a simplified bond without seal, the equity of the statute giving a remedy upon the bonds, is applicable to undertakings.
    
    
      Jurisdiction of district courts]. Nor is the jurisdiction impaired by the fact that under Code Grim. Pro. § 882, an action on such an undertaking is to be brought in the name of the city, and not in the name of the people.
    
      Action on bastardy undertaking; impeaching jurisdiction]. Under Code Grim. Pro. § 848, which requires two magistrates together to conduct proceedings in bastardy, an order made by one acting alone, although also signed by another, is void.
    
      .’Evidence to impeach undertaking.] In an action on such an undertaking, it is error to exclude evidence that the order in pursuance of which it was given was void, for want of jurisdiction, by reason of the absence of one of the magistrates who should have taken part in the proceedings.
    
      The facts-sufficiently appear in the opinion.
    
      Geo. W. Stephens, for defendant, appellant.
    
      William A. Boyd, corporation attorney, for the plaintiff.
    
      
       See, as to the difference between the two classes of instruments and the right of action upon them, 1 Abb. New Practice, pp. 61 and 461-465, where the "cases are collected. See also Lutes v. Shelley, 40 Hun, 197.
    
   Van Hoesen, J.

In determining the effect of the Code of Civil Procedure upon other acts of the Legislature, we are bound to hold that the last nine chapters of the Code were enacted on the 12th day of January, 1880 (§ 3355, Code Civ Pro.). Section 1 of chapter 389 of the laws of it>62 was in force, and that section conferred upon district courts of the City of New York jurisdiction of actions in which the people of this State are a party, where such actions are brought by the overseers of the poor or the commissioners of public charities and correction upon bastardy and abandonment bonds, and the amount demanded or recovered does not. exceed $500.”

This act of 1862 is the special statutory provision ” mentioned in subdivision three of section 3215 of the Code of Civil Procedure. That jurisdiction having been vested in the district courts on January 12,1880, by section 3215, was not divested by the repeal of the first clause of the act of 1862, which was effected by chapter 245 of the Laws of 1880, which took effect on September 1, 1880.

The only changes in the law under consideration that have been made since the Code went into operation are those that have been introduced by the Code of Criminal Procedure. A bond is no longer taken in a bastardy case, the instrument called an undertaking having been substituted for it, and the party plaintiff in an action on the undertaking is not the People of the State of New York, but the Mayor, Aldermen and Commonalty of the City of New York (§ 882, and chapters one and two of title five, Code Criminal Procedure)_.

Though a bond is not identical with an undertaking, and though in certain cases it may well be said .that a statutory provision requiring that a bond be given is not complied with when a mere undertaking is offered in its stead, 1 am of opinion that interpreting the moaning of the word “ bond,” as it is used in section 3215 of the Code Civ. Fro., we are bound to regard it as including the word undertaking. In other words, as the intent of the Legislature, in enacting section 3215, was to provide a cheap and speedy method of enforcing obligation's entered into in bastardy cases, we am to give to the language of the Code a construction that will not defeat that intent. The word “undertaking” is within the equity of the statute.

It was by looking beneath the letter of the statute in order to forward the intention of the Legislature that, in construing statutes, courts have held that the word executors included administrators, and that the word persons included corporations (§698. Smiths Const. & Stat. Construction). Sections 729, 730 and 810-816 of the Code of Civil Procedure place bonds and undertakings in the same category, and unike the provisions that apply to one applicable to the other. No pos-, sible reason can be suggested why bonds should be prosecuted in district courts, and why undertakings should not be. The undertaking is merely a simplified bond without a seal. A penal bond, ‘•hough in the ancient form, may now be sued upon as though its condition be even a covenant to pay the sum, or perform the act, specified in the condition (§ 1915, Code Civ. Pro.); that is to say, it may be treated as if it were, an undertaking. This is a ease, therefore, for the application of the maxim, Dl>i lex'esi speeiaiis, et ratio est generalis, gencraliter cst aecipienda.

Nor do Í think that the jurisdiction of the district courts, does not. extend to actions upon undertakings because the. Legislature has-seen fit to provide that actions upon them shall he brought in the name of the city instead of in the-name of the people of the State. A court having jurisdiction of the parties and the subject matter, cannot lose jurisdiction through the substitution of the real for a nominal plaintiff. The avails of the recovery go into the city treasury (§ 881, Code Crim. JPro.). The effect of the provision that the action shall be brought in the name of the corporation, was merely to require the action to be prosecuted in the name of the real party in interest. Such a provision does not deprive the district courts of jurisdiction. It seems to me, therefore, that under section 3215 of Code Civ. Pro., district courts have jurisdiction of actions brought in the name of the Corporation of JSfew York upon bastardy and abandonment undertakings.

The form of the obligation upon which this suit is brought has been severely, but justly, criticized. It is in form neither a bond nor an undertaking. It bears some resemblance to a recognizance, though it is not one. It ought to be banished from the police courts. Defective in form as it is, it might, perhaps, be upheld under the liberal provisions of section 729 of the Code of Civil Procedure as to its deficiencies.

I think that the district court erred in rejecting proof that the proceeding in which the obligation was executed was coram non judice. The Code of Criminal Procedure <§§ 848, 849, 850, 851, 852, 853, 859, 801, 862, 863) imperatively requires that two magistrates shall be together to conduct the proceedings. One magistrate alone has no power to act, and his orders are null and void. Validity is not imparted to his void adjudications by having the record of his proceedings signed by another magistrate.

If it be true that only one magistrate conducted the examination and made the order of filiation, he was acting without jurisdiction, and had no power to hold the prisoner and exact an undertaking. This want of jurisdiction could l)c shown whenever any step was taken to enforce the void .adjudication. As the order of filiation was void, so also was 1 lie undertaking given in pursuance of it (Commonwealth v. Loveridge v. 11 Mass. 337; Corning v. Slosson, 16 N. Y. 294; Morss v. Morss, 11 Barb. 510).

It was perfectly proper for the defendant to contradict the record for the purpose of proving that the court was without jurisdiction (People v. Cassels, 5 Hill, 164; Ferguson v. Crawford, 70 N. Y. 253; Craig v. Town of Andes, 93 Id. 405; Hard v. Shipman, 6 Barb. 621-624; Harrington v. People, 6 Id. 607).

It was error, therefore, for the district court to reject the evidence offered by the defendant, and the judgment should be reversed.

As the proper party plaintiff is not before the court, a new trial will not be ordered. The appellant is allowed costs of the appeal.  