
    The City of New York, Respondent, v. William Buechel and John Kenny, Appellants, Impleaded with Michael Coyne.
    
      Filiation bond—proof that an expenditure has been made by the public authorities is not essential to a recovery thereon.
    
    In an action upon a filiation bond, the fact that the principal in the bond has failed to make the payments provided for in the order of filiation entitles the plaintiff, under section 883 of the Code of Criminal Procedure, to recover, notwithstanding that the illegitimate child was born at the home of the mother;, that it has died and that the mother has borne all of the incidental expenses and that no expenditures have been made by the public authorities.
    Appeal by the defendants, William Buechel and another, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, entered in the office of said court on the 4th day of October, 1901, upon the decision of the court.
    
      William L. Carey, for the appellants.
    
      Alexander McKinny, for the respondent.
   Woodward, J.:

This action was submitted upon an agreed statement of facts. ■ It is a bastardy proceeding, and it was conceded that an order of filiation was made; that a bond was given; that no payments were made on said bond ; that the children were born at the home of the mother; that they were, in fact, maintained by the mother; that no expenses have been incurred and no expenditures made by the city. Upon this state of facts the learned court below gave judgment for the plaintiff, and appeal comes to this court.

We are of opinion that the judgment should be affirmed. It is provided by section 883 of the Code of Criminal Procedure that in an action of this character “ it is not necessary to prove the actual payment of money by a county superintendent, overseer of the poor, officer of an almshouse, or other person ; but the neglect to pay a sum ordered to be paid, by competent authority, for the support of the bastard, or of its mother, is a breach of the undertaking, and the measure of the damages is the sum ordered to be paid, and which was withheld at the time of the commencement of the action,, with interest thereon.” The order of filiation provided that the defendantMichael Coyne shall and do, upon notice of this order, pay or cause to be paid to the Commissioner of Public Charities of the City of New York, in the Boroughs of Brooklyn and Queens, the sum of four dollars weekly, and every week from the day of the birth of said child for and toward the support and maintenance thereof, for and during so long a period of time as said bastard shall be chargeable to the City of New York. And it is further Ordered, that the said.defendant shall pay to the said Commissioner of Public. Charities of the City of New York, in the-Boroughs of Brooklyn and Queens, the sum of thirty dollars for the sustenance of - the mother of said child so likely to he born a bastard, during her confinement and recovery therefrom.” The defendant was also directed to give the bond, on which this action is brought, in the sum of $300 for the performance of the condk tions of the order. There is no pretense that there has been a payment made under this order, though twins were born, both of whom subsequently died, and it is no defense that the mother has borne all of the expenses. The proceeding is statutory; the defendant was adjudged to be the father of the child likely to be born into the world a bastard upon the oath of-the mother, and a neglect on his part to make the payments directed by the order of filiation is sufficient to constitute a breach of the undertaking. (Mayor v. Celia, 23 Misc. Rep. 138 ; Tillotson v. Martin, 40 Hun, 316.) The defendant owed the duty of compliance with the conditions of the order, and upon a failure to pay the amount directed by the order the bondsmen became liable to the plaintiff, for it had been judicially determined that the defendant was “ the father of said child so likely to be born- a bastard,” and the mother had declared on oath that the said child was likely to be born a bastard and to-be chargeable to said City of New York.”

The judgment appealed from should be affirmed, with .costs. -

All concurred.

Judgment of the Municipal Court affirmed, with costs.  