People v. Pernetti

88 N.Y.S. 714 | N.Y. App. Div. | 1904

Ingraham, J.:

The appellant, with one (Antonio) Messina Genova, who had been arrested upon a charge of homicide,, entered into a recognizance whereby they jointly and severally undertook “that the above-named Messina' Genova shall appear to answer the charge, above named in whatever court it may be prosecuted, and shall at all times render himself amenable to the orders and process of the court; and if convicted shall appear for judgment and render himself in execution thereof; or if he fail to perform either of these conditions, that we will pay to the People of the State of New York the sum of fifteen hundred ($1500) dollars.”'

At the foot of this recognizance there was signed by the principal and the defendant as surety a stipulation' whereby the said principal and surety agreed and consented that “ in case said undertaking shall be forfeited that a copy of the order of the court forfeiting the same, together with this undertaking, be filed in the (office) of the clerk of the county of New York, and that judgment may be entered for the several sums set forth in said undertaking, and that execution issue forthwith thereon according to law.” This recognizance was, by an order of the Court of General Sessions, dated the 29th day of June, 1903, forfeited, and it was further ordered that the. recognizance, “ together with a certified copy of this order be filed in the office of the clerk of the county of New York, and that judgment be entered thereon according to law against the said Antonio Messina Genova the defendant above named and the said Maria G. Pernetti, his surety, for the several sums set forth in said recognizance.” No judgment entered upon this recognizance appears in the papers upon which this appeal was heard ; but there is a notice of appeal by which the defendant appeals to this court from the judgment entered on the 30th of June, 1903, in favor of the plaintiff and against the defendant for the sum of $1,500, and that on said appeal the defendant would ask the court to review the direction or order of the Court of General Sessions of the Peace made and entered in said court on the 29th day of June, 1903, directing the forfeiture of the undertaking signed by the defendant.

There is nothing to review upon this appeal, as it does not appear that any judgment was ever entered upon the order forfeiting the recognizance. The district attorney, upon notice, moved to dismiss the appeal, and from.the papers submitted on that motion it appears that after the entry of this order forfeiting the recognizance a judgment was duly entered in the office of the clerk of the Supreme Court based upon the order forfeiting the- recognizance and the stipulation of the parties thereto in favor of the People against the principal on the undertaking and his surety; that after that judgment was entered the defendant made a motion to vacate that judgment based upon the same ground as is presented upon this appeal,, which motion was denied by the Special Term of the Supreme Court, and that from that order entered upon the denial of that motion no appeal was taken.

This judgment was entered under the provisions of section 1480 of the Consolidation Act (Laws of 1882, chap. 410). That section provides that “ all recognizances given to answer to a charge preferred * * * on being forfeited, shall be filed by the district ■attorney, together with a certified copy of the order of the court forfeiting the same, in the office of the clerk of the said city and ■county, and thereupon the said clerk shall docket the same in the book kept by him for docketing of judgments, transcripts whereof are filed with him as such clerk,' as if the same was the transcript of a judgment record for the amount of the penalty, and the recognizance, and the certified copy of the order forfeiting the recognizance, shall be the judgment record.” Section 1482 of the ‘Consolidation Act provides that “ the Court of Common Pleas, upon the certificate of the district attorney, * * * may, upon such terms as are just, by order, vacate and set aside any judgment heretofore entered, or that may be hereafter entered, upon the forfeiture ■of such recognizance against such principal or surety, or either of them;” and by section 1483 a judge “presiding at the Court of General Sessions of the Peace in and for the city and county, of New York, and any justice presiding at court of oyer and terminer in said county * * ■* may, upon the certificate of the district ■attorney, * * * by order, vacate and set aside or modify any judgment * * * entered upon the forfeiture of such recognizance.” By section 1484 it is provided that the clerk of the county where said judgment is docketed, upon the receipt of a duly certified copy of the order of such court vacating, remitting or modifying such judgment, shall enter the same upon his docket, and the judgment referred to in said order shall thereupon be and become vacated, remitted or modified, in accordance with the terms of said order.

Similar provisions were before the Court of Appeals in the case of People v. Quigg (59 N. Y. 83), where it was held that this was, in effect, a judgment by consent. The court there said: “ By the recognizances the defendants acknowledged an indebtedness to the People in the sum named, subject to a defeasance, and consented that upon a failure to perform the condition the debt should become absolute, and might be made a debt of record. and judgment perfected thereon, which should be a lien upon real property, and upon which execution might issue as upon other judgments for the recovery of a sum certain.” And subsequently, in the case of People v. Cowan (146 N. Y. 348), the Quigg case was followed, the court saying: “ The peculiarity of a judgment on a recognizance in Mew York city does not make it one entered without appearance or service of a summons, * * * and that by signing it (the consent to judgment) the defendant consents that in case of forfeiture judgment may at once be perfected thereon, upon which a general execution may issue. Such written consent to the entry of judgment constitutes a voluntary appearance in the action and submission to the jurisdiction, and does not exclude the right of the creditor to institute supplementary proceedings.”

This judgment, therefore, having been entered by the consent of the appellant, which expressly authorized the clerk of the county to enter the.judgment upon filing a duly certified copy of an order of the Court of General Sessions, forfeiting the recognizance, and that order having been filed, the judgment as entered was a judgment by consent, from which it is quite clear there was no appeal. The order forfeiting the recognizance being ex pa/rte, the defendant had a right to move to vacate it if unauthorized. ' The defendant also had a right to move to vacate the judg ment if unauthorized. The defendant made the lattér motion and was unsuccessful, and from the order denying that motion no appeal was taken. The right of the defendant to have the judgment vacated was on that application definitely determined, and that determination, being unreversed, is a binding ¡adjudication upon the defendant. So far as appears by this record* the order forfeiting the recognizance was not justified, as it does not appear that the principal was ever called upon to answer the charge of homicide, and the liability of the surety was conditioned upon his failure to appear and answer that charge. But, for the reason stated, this question cannot be considered on this appeal.

It follows that the motion made by the district attorney to dismiss the appeal must be granted.

O’Brien, McLaughlin, Hatch and Laüghlin, JJ.,. concurred.

Appeal dismissed.