78 N.Y.S. 279 | N.Y. App. Div. | 1902
The relator, in an action commenced in the City Court of the city of New York, recovered a judgment for upwards of $1,000 against Mary Elizabeth Fieroe, the defendant therein named — moneys alleged to have been stolen by the defendant from the plaintiff. Prior to the commencement of. that action, the defendant Fieroe was indicted for grand larceny in the first degree, and was admitted to bail in the sum of $1,000, in lieu of which the respondent Smalley deposited with the city chamberlain $1,000, taking from him the following receipt:
“This is to certify that Newton B. Smalley, Plainfield, New Jersey, for the defendant above named, has deposited with the Chamberlain of the City of New York, this day, the sum of Ten Hundred Dollars, the sum mentioned in said order as security for said defendant’s appearance pursuant to said order, instead of the said undertaking of bail, pursuant to section 586 of the Code of Criminal Procedure.”
After such deposit had been made the relator, as the plaintiff in "the action which she had brought against Fieroe, procured a warrant of attachment and attempted to levy upon the same. Subsequently Fieroe was brought to trial, and, the jury having disagreed, an order was made discharging her and canceling the undertaking
“ April 12th, 1902.
“ To the, City Ohamberlaim, of the City of New YorTc:
“ Sib.— My undertaking to appear for trial before the Court of General Sessions of the County of Hew York was on this day discharged by order of the Hon." Joseph E. Hewbufger, who directed that the $1,000 deposited by Hew ton B. Smalley to secure my attendance at court should be refunded to me. As the said money was deposited by the said Hewton B. Smalley to secure my liberty, and as I have not now and never had any ownership in the said money, you are hereby directed to repay the said money to the said Hewton B. Smalley or his order.
“(Signed) MARY E. FIEROE.”
He also showed by his own affidavit, as well as by the affidavit of Fieroe — and the fact was not contradicted — that the money deposited in fact belonged to him. Both applications were denied» and the relator has appealed.
We are of the opinion that the relator’s application was properly denied. The fact that the money deposited actually belonged to Smalley is not disputed, nor is it disputed that such deposit was made by.him in lieu of the undertaking required in the criminal proceeding. So far as that proceeding was concerned it was Fieroe’s money (People ex rel. Gilbert v. Laidlaw, 102 N. Y. 588); but it did not make it her money for any other purpose.
The order appealed from, therefore, must be affirmed, with ten dollars costs and disbursements.
Van Brünt, P. I., O’Brien and Laughlin, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.