
    People ex rel. Crouse v. Leavitt, Sheriff.
    
      (Supreme Court, General Term, Third Department.
    
    July 11, 1891.)
    1. Bastardy—Procedure—Order of Filiation.
    In bastardy proceedings under Code Grim. Proc. N. Y. § 850, which provides that, if the magistrates determine that defendant is the father, “they must make an order of filiation, specifying therein the sum to be paid weekly or otherwise by the defendant for the support of the bastard, ” the order of filiation required defendant to pay to the overseer of the poor for the support of the bastard the weekly sum of §1.50 “so long as the said child shall continue chargeable to said county.”• Held that, though Laws N. Y. 1886, c. 155, makes each town in the county in which the proceeding was had chargeable with its own poor, the use of the word “county” instead of “town” was harmless, since the undertaking required of defendant was prescribed by Code Grim. Proc. N. Y. § 851, and defendant was committed until he should be discharged, “or deliver an undertaking required by said justices, as prescribed by section 851 of the Code of Criminal Procedure. ”
    2. Same—Support of Mother.
    Under Code Grim. Proc. N. Y. § 850, which provides that, if the justices in a bastardy proceeding determined that defendant is the father, and if the mother be indigent, they shall specify in the order of filiation “the sum to be paid by the defendant for her support during her confinement and recovery, ” the order need not specify to whom the money for the support of the mother shall be paid.
    Appeal from order of Fulton county judge.
    Application by Orville Crouse for a writ of habeas corpus to John E. Leavitt, as sheriff of Fulton county. The writ was dismissed, and relator appeals.
    Argued before Learned, P. J., and Landon and Mayham, JJ.
    
      Frank B. Townan, for appellant. Keck & Smith, (Philip Keck, of counsel,) for respondent.
   Landon, J.

The relator was committed to the jail of Fulton county by two justices of the peace sitting in a bastardy proceeding instituted against him. The relator asked to be discharged because of alleged jurisdictional errors and defects in the order of the magistrates upon which the commitment was based. Sections 850-852 of the Code of Criminal Procedure prescribe the practice and duty of the magistrates, so far as the question presented is involved. Section 850 provides that, “if they determine that he is the father, they must make an order of filiation, specifying therein the sum to be paid weekly or otherwise by the defendant for the support of the bastard; and, if the mother be indigent, the sum to be paid by the defendant for her support during her confinement and recovery. ” The order herein is challenged as erroneous in two particulars. Under the statute applicable to the support of the poor in Fulton county, each town is chargeable with" the support of its own poor. Chapter 155, Laws 1886. The order in question requires “that the said defendant pay to the said overseer of the poor, for the support of the said bastard, the weekly sum of $1.50 so long as the said child shall continue chargeable to said county.” The use of the word “county” instead of “town” was in no way prejudicial to the relator, since the undertaking required of the relator is prescribed by section 851, and it appears by the commitment that the relator was committed until he should be discharged by the court of sessions, “or deliver an undertaking required by said justices, as prescribed by section 851 of the Code of Criminal Procedure.” The addition, “so long as the said child shall continue chargeable to the said county,” was not required by the order to be inserted in the undertaking. 2To such provision is required by section 850 of the Code. It imposed no burden or penalty upon the relator, and subjected him to no illegal requirement. It was therefore harmless surplusage. The order of the magistrates further stated: “We finding the said mother is in indigent circumstances, we determine and order that the said defendant pay to the said-, for the support of the said mother during her confinement and recovery therefrom, the sum of fifteen dollars.” It is not stated in the order to whom the sum is to be paid. Section 850 does not require that it shall be so stated in the order. It was, however, properly payable to the overseer of the poor of the town. Section 851 requires that the undertaking to be given shall embrace this sum in addition to the weekly allowance. The relator was thus instructed that it should be included in the undertaking which the order required to be given to the overseer of the poor, and the commitment recites in substance that such was the requirement of the order. The order is simply defective in appearance, but not in legal substance. It certainly imposed no illegal burden upon the relator, nor left him in ignorance of the means by which he could escape commitment. The magistrates in their order certified the costs of arresting the defendant and of the order of filiation as $43.30, and required the relator to pay them. The commitment recites that he refused to pay them, but the commitment does not require their payment as the condition of relator’s discharge. In this respect less was required than ought to have been exacted. Nothing has been required of the relator in excess of the jurisdiction of the magistrates to impose, and he has been favored by the omission of an exaction which ought not to have been waived. The order of- the magistrates is not invalid because it contains inoperative and unnecessary words, or omits what the law implies, but does not require, to "be expressed. Order affirmed. All concur.  