| N.Y. App. Div. | Jul 1, 1903
This is an appeal by the People of the State of New York from an order made at a Special Term of the Supreme Court, remitting the forfeiture of a recognizance, vacating and canceling a judgment entered upon such forfeiture, and directing that the comptroller of the city of New York pay to the respondent the sum of $25,000, that being the amount of the recognizance forfeited. The application to the court below was made pursuant to sections 597 and 598 of the Code of Criminal Procedure. It was brought before the court upon a notice of motion- served upon the present district attorney of the county of New York, and was based upon an affidavit of Solomon Sayles, the respondent, in which it was set forth that on the 13th of April, 1886, Henry L. Sayles, his brother, was indicted for the crime of bribery, in the Court of General Sessions of the Peace in and for the city and county of New York; that Henry L. Sayles was held to answer the said indictment, and on that day the respondent gave bail in the sum of $25,000 for the appearance to answer of the said Henry L. Sayles; that Henry L. Sayles failed to appear, and -the bail was forfeited by an order of the court dated the 13th day of October, 1886, and a judgment for the sum of $25,000 was thereupon duly entered against Solomon Sayles, the amount of which judgment was paid to the comptroller and chamberlain of the city and county of New York. The judgment was satisfied on November 24, 1886. Henry L. Sayles left the jurisdiction of the court, and did not return until the 7th of May, 1890, when he voluntarily surrendered himself for trial upon the indictment found against him. Cn the 13th day of June, 1890, the indictment
It is provided by section 597 of the Code of Criminal Procedure that after the forfeiture of an undertaking of. bail or the deposit of money in lieu of bail, the court directing the forfeiture, the County Court of the county, or, in the city of Hew York, the Supreme Court, .may remit the forfeiture or any part thereof, upon such term's as are just, Section 598 of the Criminal Code requires that the application must be made upon at least five days’ notice to the district attorney of the county, served with copies of the affidavits and papers on which it is founded, and can be granted only upon the payment of the costs and expenses incurred in the proceedings for the enforcement o£ the forfeiture.
These sections of the Code of Criminal Procedure confer authority and direct the method in which the application shall be made, but section 1482 óf the Consolidation Act, which has special application to the city of Hew York, we deem to be still in force-— the authority conferred upon the Court of Common Pleas by that section being transferred to the Supreme Court. It is provided by that section that the Court of Common Pleas, upon the certificate of the district attorney that the- People of the State of Hew York have lost nó rights by reason of' the failure of a surety
In this case the certificate of the present district attorney was not obtained. The district attorney in office at the time the indictment was dismissed is dead. The present learned district attorney insists that the procurement and presentation to the court of the certificate mentioned in section 1482 of the Consolidation Act is a con-, dition precedent to the right of a surety to have the judgment vacated and the forfeiture remitted. We do not so regard it. The jurisdiction of the Supreme Court is complete. The provision of-section 1482 of the Consolidation Act should be regarded as only relating to evidence. The power of the court to proceed without it, if it so chooses, we think, is not to be impugned. But the authority conferred by the Code of Criminal Brocedure or by the Consolidation Act is discretionary. It is a judicial discretion, sub-ject to be reviewed by this court, and we are of the opinion that in this case that discretion was not properly exercised and the application should have been denied.
The bail was forfeited in the year 1886, the judgment was paid and satisfied in ¡November of that year, and the money paid became part of the county funds. Sixteen years elapsed before the application was made to set aside the judgment. It is fair to presume that meantime that money was expended by the county for general purposes, and the comptroller should-not be required, after the lapse of sixteen years, to pay to the respondent a large sum of money, which is substantially a gift to him and which must be paid by the taxpayers. It is not as if a fund had remained in the treasury. The respondent has no absolute legal right to this money, as the bail was forfeited. The defendant in the indictment left the jurisdiction, remained away four years, and not until twelve years after his
The delay is not sufficiently explained. The respondent states1 merely in his affidavit that he failed to apply for the relief now sought, because of ignorance of his exact rights in the premises.
"We are of the opinion that the certificate of the district attorney is not a prerequisite to the exercise of the power of the court; but we think that, under the circumstances' of this case, the discretion, to remit- the forfeiture and vacate the judgment was not properly exercised, and that the order should be reversed, with ten. dollars costs and disbursements, and that the motion should be denied, with ten dollars costs. •
■ O’Brien, Ingraham, Hatch and Laughlin, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.