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People v. Schwarze

168 A.D. 124 Court Second Department, Decision date 1915-05-07 English

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p. 124
The People of the State of New York, Appellant, v. Frank Schwarze, Respondent. In the Matter of Proceedings Supplementary to Execution of a Judgment in Favor of The People of the State of New York, Judgment Creditor, v. Frank Schwarze, Judgment Debtor.
Second Department,
May 7, 1915.

Headnote

Bail — motion to reduce amount of forfeiture—financial condition of defendant.
A judgment entered on a forfeited bail bond should not be reduced where the proof of the defendant does not show that enforcement of payment would pauperize him, but on the contrary it appeal's that he has been able shortly before his examination in supplementary proceedings to make substantial payments in the line of his business.
p. 125
Appeal by the plaintiff and judgment creditor, The People of the State of New York, from an order of the County Court of Kings county, entered in the office of the clerk of said county on the 19th day of January, 1915, reducing the forfeiture and judgment herein, and also from an order of said court entered in said clerk’s office on the 2d day of February, 1915, denying a motion to resettle the prior order.
Harry G. Anderson, Assistant District Attorney [ James C. Cropsey, District Attorney, and Hersey Egginton, Assistant District Attorney, with him on the brief], for the appellant.
Matthew W. Carmel [Rufus L. Perry with him on the brief], for the respondent.

The defendant gave an undertaking in bail and his principal defaulted within a few days. The defendant was not proceeded against until 1909, when judgment was entered upon his default in an action brought against him. Upon application to the County Court the judgment was reduced from $300 to $150, which was paid forthwith. The People appeal.

The defendant never produced the accused, and did not show that discharge of liability would result in destitution in his family, deprivation of their support and education and deprivation of his creditors. (People v. Heit, 152 App. Div. 179 . See, also, Matter of Pellegrino, 152 App. Div. 482 ; affd., 207 N. Y. 770 .) The margin between the present condition of the defendant and that required by the rule indicated in People v. Heit {supra) is not so narrow as to be measured, so to speak, by $150. The condition of the defendant, as revealed by his examination in supplemental proceedings, justifies a more optimistic view than that taken by him, and does not justify his conclusion that the payment of the $300 would “practically pauperize ” the defendant. He keeps a shop for the sale of liquor at retail. He is possessed of real estate, although it is true that it is incumbered. But his debts amounted to less than $450, exclusive of a payment due the brewery of $900, and of $3,000 which he owes to his wife on a debt of twelve years’ standing. Within sixty days of his examination he had paid out upon two notes, and for beer, ale and milk, $646.

p. 126
In passing upon such applications, the court should remember that there is a principle involved beyond that of clemency to the bondsman. Justice may be defeated by the escape of the principal, and if it is clearly understood that the bondsman will be held rigidly accountable for the escape, the administration of the criminal law will be promoted.

The order of the County Court of Kings county is reversed and the judgment is reinstated. Due credit should be given for the payment of the $150 as on account of the judgment.

Jenks, P. J., Thomas, Stapleton and Rich, JJ., concurred.

The parties hereto having stipulated in open court that this case may be disposed of by a court of four, the decision is as follows: Order of the County Court of Kings county reversed and judgment reinstated. Due credit should be given for the payment of the $150 as on account of the judgment.

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