"Brown" v. "White"

(concurring). I concur in the determination that this case be set down for trial on May 25, 1961.

This court acquired jurisdiction of the subject matter and the person of the defendant. On July 27, 1960, defendant after being duly served with a summons and complaint appeared in this court with counsel, denied paternity, moved for and was granted an order for a blood-grouping test, and in the discretion of the court was paroled for trial on October 14, 1960. Thereafter the trial was adjourned several times and was given a preference and marked peremptorily against defendant for trial on April 14,1961.

On April 14, 1961, defendant failed to appear for trial and a bench warrant was ordered with bond fixed in the sum of $1,000.

Upon an oral motion made by complainant’s attorney, for the holding of an inquest, decision was reserved.

Since then a formal motion now before this court has been made requesting that an order be made directing defendant to appear for trial and that the trial be held on the date fixed, even though defendant elects to not appear.

In the moving papers, complainant recites that upon joinder of issue, demand was made for a direction by the court that defendant be required to post the undertaking called for under *384section 65 of the New York City Criminal Courts Act. The court at that time did not require such undertaking or direct that in lieu thereof defendant be committed to answer the complaint, but in its discretion placed the defendant on parole. On this motion, the answering affidavit of defendant’s counsel makes no denial of the aforesaid but merely recites that defendant was sent a notice advising him of the default, the direction that a warrant issue, and the fixation of an undertaking. Such notice was sent by certified mail which was not returned as undelivered. In this feature of this case, there is somewhat of an analogy to the situation passed upon in Duerr v. Wittmcmn (5 A D 2d 326).

It seems to me that this court cannot be divested of jurisdiction to make an effective determination of the complaint herein through the simple device of defendant violating his parole and electing to remain away from the trial.

Therefore, I join in the determination that this defendant should be formally served with an order directing his appearance for trial on May 25, 1961 and with a further recitation in said order that upon defendant’s failure to appear on such date the trial will proceed and evidence will be taken in his absence, so that a final determination may be made either dismissing the petition or adjudicating an order of filiation and fixing an award for the support of the child.

Silver, J., concurs; Rohan, J., concurs with opinion.

In this motion complainant asks this court to proceed to trial in a paternity suit in the absence of the defendant. Defendant was duly served with a summons *382and complaint. He appeared in court and denied paternity. He requested an order for a blood-grouping test which was granted. He appeared with his counsel when the ease .was. on the Trial Calendar. After several adjournments the case was given a preference and marked “ final ” against the defendant.

"From this point on, defendant has failed to appear. A bench warrant was ordered for his arrest and an order was made for him to post a $1,000 undertaking.

If an undertaking had been previously posted, it is clear that the issue of defendant’s paternity could have been tried in his absence. (N. Y. City Crim. Cts. Act, § 67, subd. 2; Commissioner of Welfare v. Kelemen, Court of Special Sessions, City of N. Y. Index 660-1942; Sehatkin, Disputed Paternity Proceedings [3d ed.], pp. 94-95.) It is contended, however, that since an undertaking has not been posted, this court lacks the power to proceed to trial in the absence of the defendant. Mr. Sehatkin is of this view (p. 95): “It must be emphasized, though, that the practice of proceeding to trial in the absence of the defendant is authorized only where an undertaking with security for appearance had previously been furnished.” We know of no. case deciding this question.

Subdivision 2 of section 67 of the New York City Criminal Courts Act is not unambiguous. It provides: “If the defendant fails to appear, his undertaking for appearance shall be forfeited and the amount secured thereby shall be applied on account of the payment of such order of support as the court may make and for this purpose the trial shall proceed as if the defendant were present, and if the findings be against the defendant the court shall make such orders as if the defendant were in court. ” It is argued that the words 1 ‘ for this purpose ’ ’ limit trials in absentia to those cases where an undertaking has been posted.

We disagree. In this proceeding the court has in personam jurisdiction over the defendant. Any final order would be made against him — not his property. We fail to see the logic whereby the posting of' an undertaking confers an additional in rem jurisdiction on this court which enables it to try a case in defendant’s absence. In such case the final order is still an order against the defendant in person, although it first feeds upon the undertaking posted with the court. There is no suggestion that the amount in the filiation order is limited to the amount of the undertaking. We understand that a filiation order so achieved would remain in full force and effect even after periodic payments had consumed the whole sum.

*383The Domestic Relations Law which regulates paternity proceedings outside of the City of New York offers a clue to the general legislative intent as to trials in absentia. Subdivision 2 of section 126 provides: “ If the defendant fails to appear, the security for his appearance shall be forfeited and shall be applied on account of the payment of the order of filiation, but the trial shall proceed as if he were present; and the court shall upon the finding of the judge make such orders as if the defendant were in court.” Here the words “ for this purpose ” have not been used, and it would seem clearer that a trial in absentia does not hinge on the posting of an undertaking.

We conclude that the Legislature in enacting the two sections above intended to grant the courts two powers upon the default of defendant:

1. To try a defendant in absentia.

2. To transform an appearance undertaking into a performance undertaking after a filiation order has issued.

These powers are entirely different and have no logical interdependence. We therefore hold that the absence of an appearance undertaking is no bar to a trial in absentia. The case will be set for trial and defendant’s attorney of record so notified.