In re Clausi

• Decision Date: 22 May 1947
• Citation: 296 N.Y. 354,73 N.E.2d 548
• Parties: In re CLAUSI.
• Court: New York Court of Appeals Court of Appeals

296 N.Y. 354

73 N.E.2d 548

In re CLAUSI.

Court of Appeals of New York.

May 22, 1947.

Appeal from Supreme Court, Appellate Division, Third Department.

Filiation proceedings by Rose A. Fuscardo against John Clausi. From an order of the Appellate Division, 271 App.Div. 845, 66 N.Y.S.2d 347, affirming, by a divided court, an order of the Children's Court of Ulster County, Cashin, J., fixing filiation and directing defendant to contribute to the support of plaintiff's child and pay certain expenses, defendant appeals.

Appeal dismissed. John E. Egan and Chris J. Flanagan, both of Kingston, for appellant.

Frederick H. Stang, of Kingston, for respondent.

FULD, Judge.

Charging that defendant was the father of her child, complainant instituted filiation proceedings against him, pursuant to the Domestic Relations Law, Consol.Laws, c. 14, and the Children's Court Act (L.1922, ch. 547, as amd.), in the Children's Court of Ulster County. An order was entered adjudging defendant to be the father and directing him to pay $5 a week for the child's support. Upon appeal to the Appellate Division, that court affirmed, one justice dissenting on the ground that certain evidence had been improperly rejected. From that nonunanimous affirmance, defendant has appealed to this court wihtout permission.

Contrary to defendant's assumption, the appeal does not lie as of right; accordingly, it must be dismissed. That being so, it becomes pertinent to inquire whether leave to appeal must be obtained from a court or from a judge whether the appeal is controlled by provisions applicable to civil or criminal proceedings, by Civil Practice Act or Code of Criminal Procedure.

A filiation proceeding initiated as the present was in a children's court, pursuant to the Domestic Relations Law, is civil and noncriminal in nature. Confirmation is furnished by the definition of a ‘crime’ as well as by the inherent character of a criminal prosecution. Penal Law, Consol.Laws c. 40, s 2; see, also, Hodson v. Hoff, 291 N.Y. 518, 50 N.E.2d 648. Although we have held that a paternity suit is criminal in form (Commissioner of Public Welfare v. Simon, 270 N.Y. 188, 191, 200 N.E. 781, 782; Hodson v. Hoff, supra), it must be observed that such statements were made, such rulings announced, in cases brought in the Court of Special Sessions of the City of New York under the Inferior Criminal Courts Act now known as the New York City Criminal Courts Act (L.1910, ch. 659, as amd.) and were regulated by the Code of Criminal Procedure. Civil in essence, the proceeding assumes a ‘criminal’ form from its surroundings from the fact that is is tried in a court of criminal jurisdiction. Cf. People v. Lewis, 260 N.Y. 171, 183 N.E. 353, 86 A.L.R. 1001. The Lewis case is illuminative. We there held that, while a juvenile delinquency proceeding commenced in a children's court under the Children's Court Act is noncriminal, it is to be regarded as ‘criminal’ if instituted in a tribunal vested with ‘criminal jurisdiction’ such as, for example, the Buffalo City Court or the New York City Special Sessions Court. See People v. Lewis, supra, 260 N.Y. at pages 174-176, 177, 178, 183 N.E. at pages 353, 354, 355, 86 A.L.R. 1001;People v. Fitzerald, 244 N.Y. 307, 309-311, 155 N.E. 584, 585, 586.

It follows from what we have said that, while a defendant would be required to procure permission from a judge in accordance with the provisions of the Code of Criminal Procedure (s 520, subd. 3)...