89 N.Y.S. 424 | N.Y. Sup. Ct. | 1903
This is a motion to vacate and set aside a judgment heretofore entered against John Mahoney, as surety, and Pietro' Sorrentino, as principal, upon a forfeited recognizance. The surety now claims that the judgment wás unfounded, he having surrendered the prisoner to the proper officers. A motion for the same relief was made before me several months ago, and is now renewed on additional affidavits. In support of the former application it was, among
The method by which a surety may become exonerated of his liability upon his undertaking is prescribed by section 590 of the Code of Criminal Procedure, as follows:
“At any time before the forfeiture of the undertaking, any surety may surrender the defendant in his exoneration, or the defendant may surrender himself, to the officer to whose custody he was committed at the time of giving bail, in the following manner: (1) A certified copy of the undertaking of the bail must be delivered to the officer, who must detain the defendant in his custody thereon, as upon a commitment, and by a certificate in’writing acknowledge the surrender. (2) Upon the undertaking and the certificate of the officer, the court in which the indictment or appeal, as the case may be, is pending, may, upon a notice of five days to the district attorney of the county, with a copy of the undertaking and certificate, order that the bail be exonerated; and on filing the order and the papers used on the application, the bail is exonerated accordingly.”
It is not pretended that the steps here provided for were taken in the present case. On the contrary, in addition to the facts above stated, it affirmatively appears by the opposing affidavits that no certified copy of the undertaking of the bail was procured, and that no certificate of the warden of the city prison acknowledging the surrender of Sorrentino has been filed either in the Criminal Term of the Supreme Court or in the Court of General Sessions of the Peace, nor has there been filed the order of either of the said courts exonerating the surety herein, or any of the other papers required by the above section. It is not necessary to hold in this case that, in order to procure his exoneration, a surety must follow the precise course indicated by the statute, but if he does not do so, or at any rate substantially comply with those requirements, he departs from the prescribed course at his peril. The statute wisely provides for a formal proceeding and indisputable evidence. If a surety neglects to avail himself of this method, he assumes the burden of establishing by other evidence that the prisoner was surrendered into the custody of an officer properly authorized to receive him This burden I do not think the applicant has sustained in this case.
Motion denied, with $10 costs.