
    THE PEOPLE OF THE STATE OF NEW YORK, Appellants, v. THOMAS H. PETTIT and others, Respondents.
    
      Disordmiy person — bond given by (3 B. 8. [5th ed.], 903)—nature of—liability under.
    
    In this action, brought by the people upon a bond, given by the defendant in pursuance of 3 Revised Statutes (5th ed.), 903, conditioned for the support of his wife, the plaintiff was nonsuited on the ground that, although defendant had neglected to support his wife, yet, as she had supported herself, and the county had not been put to any expense therefor, the plaintiffs were not entitled to recover. Seld, that this was error. The bond required by the statute is not a bond of indemnity to the town or county to repay such sums as either may have advanced for the support of the family, but the amount named in it is a penalty imposed for the neglect to support the wife.
    Appeal from a judgment in favor of the defendant, entered upon the report of a referee.
    
      A. L. Johnson, for the appellant's.
    
      Isaac D. Garfield, for the respondents.
   Mullin, P. J.:

The defendant Pettit was proceeded against under section 1, of 2 Revised Statutes (5th ed.), 903, as a disorderly person, for having abandoned and neglected to support his wife and child; and he was adjudged by a justice of the peace to be a disorderly person for the cause aforesaid. After the adjudication, defendant entered into a recognizance with two sureties, in the sum of $500 each, that the defendant should be of good behavior for the space of one year, and he was discharged.

The defendant continuing to neglect to support his family after said recognizance was entered into, an action was brought thereon in this court to recover said sum of $500. On the trial before a referee, the defendant’s wife was examined as a witness, and testified that she had supported herself and children since the recognizance was given. ISTo evidence was given that the people had paid anything toward the support of any of defendant’s family. It was proved on the part of the defense, that defendant had made' an arrangement to board his wife and children at his father’s house, where he himself boarded, and that he had, on repeated occasions, requested her to go and live with him, but she refused to do so. She testified that defendant’s father got drunk occasionally, and when drunk, was violent and abusive; that she and his mother did not agree; and a girl Was employed in the family, with whom the wife had seen defendant take indecent liberties. The occasional drunkenness of the father was admitted by defendant, but he denied that he had taken liberties with the girl.

The referee found, as facts, the entering into the recognizance, and that defendant’s wife had supported herself and family without assistance from the defendant; and he held, as matter of law, that the recognizance was in the nature of an indemnity bond to the town or county against the support of the wife and child, and that the refusal of defendant to furnish support after the recognizance, was immaterial to the issue, and he therefore nonsuite,1 the plaintiff.

The referee having found nothing on the subject of the provision made by the defendant for his wife and child, and of her refusal to accept it, we must assume that he held her justified in refusing, as it seems to me she certainly was, if her evidence is to be credited.

The question is, is the referee’s conclusion of law correct, that there could be no recovery on the recognizance, as the public authorities had not supported the wife or child ? The law imposes upon the husband the duty of providing for the support of his famliy, and the neglect to do so is a violation of law, and renders him liable to be treated as a disorderly person. It is wholly immaterial who furnishes them with support, so long as he does not. It is his omission to perform his moral as well as legal duty, that constitutes the violation of the statute. If there could be no recovery on the recognizance unless the town or county had been subjected to expense, the law would operate most harshly when the relatives of the wife are able to support her, and would much prefer to do so to allow her to be treated as a pauper, and forced, as she and her children might be, into the poor house. If such is the construction of the statute, worthless husbands will be relieved altogether from the support of their families, and their support be transferred to the relatives of the wife. I cannot believe that any such result was ever contemplated; and a construction of - the statute that would lead to such a result, ought not to be given to it unless it will bear no other. Instead of treating the recognizance as in the nature of a bond of indemnity to the town or county to repay such sums as either may have advanced for the support of the family, the amount named in it should be held to be a penalty imposed for the neglect to support. Such must have been the view of those who framed the statute. The whole amount is forfeited for the neglect to support, however short the time may be, and it is to be paid into the county treasury, to be applied to the support of the poor. In cases in which the support of the poor is a town charge, no share of the money paid can be recovered by the town, to compensate for whatever may have been paid by it for the support of the family.,

There are many cases in which the penalty for a violation of law is required to be paid into the county treasury for the benefit of the poor. I am unable to distinguish the sum collectible under the recognizance in this class of cases, from the penalties in the eases just referred to. The penalty is imposed not for the purposes of indemnity, but by way of punishment. The object is to compel the husband to support his family, or pay the penalty incurred by his neglect, or, doing neither, to be imprisoned until he shall consent to obey the law. If the sum named in the recognizance, is to be treated as indemnity, a recovery should have been permitted from time to time, to reimburse the town or county for moneys advanced; but there can be but one recovery upon this instrument, and, as has been suggested, that recovery may be had upon refusal to support at any .time after the recognizance is given. Section 29 of 2 Statutes at Large, page 507, provides that it shall not be necessary to allege or prove any damages by reason of the breach of the recognizance; judgment is to be entered for the penalty.

The referee erred in nonsuiting the plaintiff. The judgment must therefore be set aside, and new trial granted, costs to abide the event.

Present—Mullin, P. J., Surra and Gilbert, JJ.

Gilbert, J., dissented.

Judgment reversed and a new trial granted, costs to abide event.  