Opinion
February Term, 1899.
August P. Wagener, for the appellant.
Adrian T. Kiernan, for the respondent.
On the complaint of one Victoria Malinska, who alleged that she was pregnant with a child likely to be born a bastard, and that the defendant was the father of such child, a proceeding was instituted by the commissioner of charities of the boroughs of Manhattan and the Bronx in the city of New York, and resulted in the judgment appealed from. The only point raised by the defendant was that the Court of Special Sessions of the city of New York had no jurisdiction, as neither the father nor the mother of the child was a resident of the boroughs of Manhattan and the Bronx, such boroughs being the territory over which the commissioner in whose name this proceeding was instituted had jurisdiction. This proceeding is instituted under the Code of Criminal Procedure. By section 840 thereof, it is provided that "if a woman be delivered of a bastard or pregnant of a child likely to be born such, and which is chargeable to a county, city or town, a superintendent of the poor of the county * * * an overseer of the poor or other officer of the almshouse of the town or city where the woman is, must apply to a justice of the peace or police justice in the county to inquire into the facts of the case." The defendant, it is shown, resided at Yonkers, but the woman who was pregnant was alleged to be in the city of New York at the time the proceeding was commenced. Thus, under this provision of the Code of Criminal Procedure, the pregnant woman being within the city of New York, the application could be made in this city. By the charter of the city of New York (Laws of 1897, chap. 378, § 684) it is provided that all bastardly proceedings shall be conducted by and in the name of the commissioner within whose jurisdiction the person charged with being the father or mother of the bastard resides. By subdivision 3 of section 1406 of the charter, it is provided that the Court of Special Sessions shall have exclusive jurisdiction in the first instance of all proceedings respecting bastards within the city of New York, and that the jurisdiction conferred by sections 838 to 860, inclusive, of the Code of Criminal Procedure shall be exclusively exercised within the said city by said court. The section then continues: "The application specified in section eight hundred and forty of said Code of Criminal Procedure shall be made to the Court of Special Sessions in the county wherein a bastard is born, or where the woman pregnant of a bastard likely to be born is."
There can be no question but that upon this testimony this woman was within the county of New York when the proceeding was commenced. She had actually been in the county for three weeks; and if the child had been born during the time that she was actually in this county, it would have been a charge upon this county.
Reading these two sections of the charter together, it seems that it was the intention to require the commissioner of charities to proceed when a woman is delivered of a bastard, or is pregnant of a child likely to be born such within his jurisdiction. Any other construction to be given to the term "resides," contained in section 684 of the charter, would prevent any proceeding from being instituted where the mother was actually within this county so that her child would be a county charge if the legal residence of the woman was elsewhere. By the presence of this woman in the city of New York, the court acquired jurisdiction of the proceeding, and the subsequent removal of the woman from the city of New York to Brooklyn would not divest the court of such jurisdiction. Whether this child when born would be a charge upon the county of Kings or the county of New York was immaterial, as in either case it would be a charge upon the city of New York. When the proceeding was commenced she seems to have been actually residing in the borough of Manhattan, and this justified the commissioner in instituting the proceeding and gave the court jurisdiction. The court having thus acquired jurisdiction nothing that subsequently happened divested it.
The judgment appealed from should be affirmed, with costs.
VAN BRUNT, P.J., PATTERSON, O'BRIEN and McLAUGHLIN, JJ., concurred.
Judgment affirmed, with costs.