CHAPTER 14. Illegitimacy. I. Bastardy proceedings; criminal code. il. Support of bastard; poor law. III. Prosecution and jurisdiction of certain courts. I. BASTARDY PROCEEDINGS; CRIMINAL CODE. Criminal Code. (L. 1881, ch. 442.) Of Proceedings Respecting Bastardy. I. Proceedings before magistrates, respecting bastards. II. Appeals from the orders of magistrates, respecting bastards. III. Enforcement of the undertaking for the support of the bastard or its mother, or for appearance on appeal. CHAPTER I. Proceedings Before Magistrate Respecting Bastards. Section 838. Definition of a bastard. 839. Who are liable for its support. 840. When bastard, chargeable to the public, is born or is likely to be born, application to be made to a justice of the peace or police justice. 841. Examination by the magistrate, and warrant against the father. 842. Justice designated as a magistrate, and person proceeded against as defendant. 843. Warrant, when to be served in another county. 844. Magistrate in another county may take undertaking, etc. 840. If undertaking not given, defendant to be taken before magis- 847. Before what magistrate in the same county defendant is to be taken, when the magistrate issuing the warrant is unable to act. 848. The magistrate to associate with himself another magistrate, 849. Adjournment of examination; security from defendant. 852. On giving undertaking, defendant to be discharged, otherwise 853. Commitment of defendant during examination. 854. Proceedings by magistrate, when security is given by defendant on arrest out of the county. 855. Examination in such case, and order thereon. 856. Magistrates may compel mother to disclose the father of the bastard; proceedings, if she refuse. 857. If mother possess property, two magistrates may make an order that she pay for the support of the child. Section 858. If she do not comply, she must be committed, or discharged on undertaking. 859. Magistrates may reduce amount directed to be paid by the father or mother; county court may reduce or increase it. 860. Proceedings against the father or mother absconding from their place of residence. § 838. Definition of a bastard. A bastard is a child who is begotten and born, 1. Out of lawful matrimony; 2. While the husband of its mother was separate from her for a whole year previous to its birth; or, 3. During the separation of its mother from her husband pursuant to a judgment of a competent court. § 839. Who are liable for its support. The father and mother of a bastard are liable for its support. In case of their neglect or inability, it must be supported by the county, city or town. chargeable therewith under the provisions of the poor law. (Amended by L. 1904, ch. 520; L. 1908, ch. 248.) § 840. When bastard, chargeable to the public, is born, or is likely to be born, application to be made to a justice of the peace or police justice. If a woman be delivered of a bastard, or be 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, or 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. (Amended by L. 1895, ch. 887; L. 1905, ch. 327.) § 841. Examination by the magistrate and warrant against the father. The magistrate must, by the examination of the woman on oath, and any other testimony which may be offered, ascertain the father of the bastard, and must issue his warrant, directed to a peace officer of the county, commanding him, without delay, to apprehend the father and bring him before the justice, for the purpose of having an adjudication as to the filiation of the bastard. § 842. Justice designated as a magistrate, and person proceeded against as defendant. An officer issuing a warrant or making an examination, as provided in this chapter, is designated as a magistrate, and the person against whom the warrant is issued as the defendant. § 843. Warrant, when to be served in another county. If the defendant reside in another county than that in which the warrant issued, the magistrate must, by an indorsement thereon, direct the sum in which the defendant shall give security, and the officer must deliver the warrant to a justice of the peace or police justice in the city or town in which the defendant resides or is found. The magistrate to whom it is presented, on proof, under oath, of the signature of the magistrate who issued the warrant, must then indorse a direction thereon, that it be served in the county in which he resides, and the defendant may be arrested in that county accordingly. Upon this proof, the magistrate indorsing the warrant is exempted from liability to a civil or criminal action, though it afterward appear that the warrant was illegally or improperly issued. § 844. Magistrate in another county, may take undertaking, etc. When the defendant is arrested in another county, he must be taken before the magistrate who indorsed the warrant, or before another magistrate of the same city or county, who may take from the defendant an undertaking, with sufficient sureties, to the effect : 1. That he will indemnify the county, and town or city, where the bastard was or is likely to be born, and every other county, town or city, against any expense for the support of the bastard, or of its mother during her confinement and recovery, and to pay the costs of arresting the defendant, and of any order of filiation, that may be made, or that the sureties will pay the sum indorsed on the warrant; or 2. That the defendant will appear and answer the charge at the next county court of the county where the warrant was issued, and obey its order thereon. (Amended by L. 1895, ch. 880.) $845. On giving undertaking, defendant to be discharged. When either of the undertakings mentioned in the last section is given, the magistrate must discharge the defendant, and must indorse a certificate of the discharge upon the warrant. He must also deliver the warrant, with the undertaking, to the officer, who must return it to the magistrate granting the warrant, by whom the same proceedings must be had, as if he had taken the undertaking. § 846. If undertaking not given, defendant to be taken before magistrate who issued the warrant. If the defendant do not give security, as provided in section eight hundred and forty-four the officer must take him before the magistrate who issued the warrant. § 847. Before what magistrate in the same county, defendant is to be taken, when the magistrate issuing the warrant is unable to act. If, however, the magistrate who issued the warrant be absent or unable to act, the defendant must be taken before the nearest or most accessible magistrate in the same county. The officer must, at the same time, deliver to the magistrate the warrant, with his return indorsed and subscribed by him. § 848. The magistrate to associate with himself another magistrate, and they to examine the matter. The magistrate before whom the defendant is brought, as provided in the last two sections, must immediately associate with himself another justice of the peace or police justice in the same county or city; and the two magistrates thus associated, must inquire into the charge, and must examine on oath, the woman who is the mother of or pregnant with the bastard in the presence of the defendant, in respect to the charge, and hear any testimony which may be offered in relation thereto. § 849. Adjournment of examination; security from defendant. The magistrates may, on the application of the defendant, for good cause, adjourn the examination, not exceeding thirty days, upon the defendant giving an undertaking, with two sufficient sureties, to the effect that he will appear before the magistrates at the time appointed, or that the sureties will pay the sum mentioned therein, which must be fixed by the magistrates, and which must be a full indemnity for the expense of supporting the bastard and its mother, as provided in section eight hundred and fifty-one. Until the determination by the magistrates, if not admitted to bail, the defendant must be detained in custody of an officer or be committed to the common jail for detention in the same manner as a prisoner arrested in a civil cause. (Amended by L. 1894, ch. 221.) § 850. Determination of the case and order of the magistrates. Upon the hearing the magistrates must determine who is the father of the bastard, and must proceed as follows: 1. If they determine that the defendant is not the father of the bastard, he must be forthwith discharged. 2. 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; and in case said bastard shall die, that the defendant will pay the necessary funeral expenses. 3. They must certify the reasonable costs of arresting the defendant, and of the order of filiation; 4. They must reduce their proceedings to writing, and subscribe them. (Amended by L. 1904, ch. 520.) § 851. Defendant to pay the costs, and give undertaking for support, etc., or for appearance at county court. If the defendant be adjudged to be the father, he must immediately pay the amount certified for the costs of the arrest and of the order of filiation, and enter into an undertaking, with sufficient sureties approved by the magistrates, to the effect: 1. That he will pay weekly or otherwise, as may have been ordered, the sum directed for the support of the child, and of the mother during her confinement and recovery, or which may be ordered by the county court of the county; and that he will indemnify the county, and town or city, where the bastard was or may be born (as the case may be), and every other county, town or city, which may have been or may be put to expense for the support of the bastard, or of its mother during her confinement and recovery, against those expenses, or that the sureties will do so, not exceeding the sum mentioned in the undertaking, and which must be fixed by the magistrates; or 2. That he will appear at the next term of the county court of the county, to answer the charge and obey its order thereon, or that the sureties will pay a sum equal to a full indemnity for supporting the bastard and its mother, as provided in the first subdivision of section eight hundred and forty-four. (Amended by L. 1895, ch. 880.) § 852. On giving undertaking defendant to be discharged; otherwise, to be committed. Upon a compliance with the provisions of the last section, the magistrates must discharge the defendant; but otherwise, they or either of them, must, by warrant, commit him to the county jail, or in the city of New York, to the city prison of that city, until he be discharged by the county court of the county, or deliver an undertaking, as prescribed by the last section. (Amended by L. 1895, ch. 880.) § 853. Commitment of defendant during examination. During the examination and until the defendant is discharged by the magistrate, he must remain in the custody of the officer who arrested him, unless an undertaking have been given for his appearance, as provided in sections eight hundred and forty-four and eight hundred and forty-nine; and when committed to prison, he must be actually confined therein. (Amended by L. 1882, ch. 360.) § 854. Proceedings by magistrate when security is given by defendant on arrest out of the county. When security taken out of the county, for the appearance of the defendant at the county court as provided in section eight hundred and forty-four, is returned to the magistrate who issued the warrant, he must associate with himself another magistrate of the same county and the magistrates thus associated must proceed as provided in sections. eight hundred and forty-eight to eight hundred and fifty, both inclusive. (Amended by L. 1895, ch. 880.) § 855. Examination in such case, and order thereon. The examination may be had and the order of affiliation made in the absence of the defendant, unless, before the order is made, he require of the magistrate issuing the warrant that the examination be had in his presence, in which case the examination must be had as if the defendant had originally appeared. §856. Magistrates may compel mother to disclose the father of the bastard; proceedings if she refuse. In making an examination authorized by this chapter, the magistrate issuing the warrant, or the magistrates making the examination, may compel the mother of a bastard, chargeable to a county, city or town, or a woman pregnant of a child likely to be born such, to disclose the name of the father of the bastard; or if she refuse to do so, may, by a warrant setting forth the cause thereof, at the expiration of one month from her delivery, if sufficiently recovered, commit her |