People v. Kurtz — 16 Daly (N.Y.) 188

Majority

p. 188

People of the State of New York, Plaintiffs, against Leopold Kurtz et al., Defendants.

(Decided May 7th, 1890.)

Headnote

A judgment entered on a forfeited recognizance cannot be vacated where it is not shown that the principal has either surrendered himself or been surrendered by his surety, or that the surety has made diligent efforts to secure and surrender him; nor unless the certificates of the district-attorney, that the people have lost no rights by reason of the failure of the surety to produce the principal, and of the sheriff, that all fees and charges have been paid, are presented. That the surety had no notice to produce the principal on the day when the recognizance was forfeited cannot avail; a party under recognizance may be called on any day during the continuance of the court.

Motion to vacate a judgment entered on a forfeited recognizance.

J. _ZY Miller, for the surety, defendant, for the motion.

J. R. Fellows, District Attorney, opposed.

[Larremore, Ch. J., and J. F. Daly and Bischopp, JJ.]—The principal was indicted on the 25th of October, 1888, for the crirn.e of grand larceny and for criminally receiving stolen property. He was arrested, and on the 23rd of November, 1888, he, together with the surety, entered into a recognizance in the sum of fifteen hundred dollars for his appearance to answer the indictment. The case was on the calendar of the Court of General Sessions on the 11th of April, 1889, when the principal failed to appear and the surety did not produce him according to the terms of the recognizance, which was thereupon forfeited, and afterwards judgment was duly entered upon such forfeiture.

The papers submitted fail to show that the principal has either surrendered himself or been surrendered by his surety, or that the surety lias made diligent efforts to secure the principal and surrender him. Under such circumstances an

p. 189

application to discharge a judgment entered upon a forfeited recognizance, made before the prisoner is produced or tried or a nolle prosequi entered, is premature and cannot be considered (People v. Fields, 6 Daly 410 ; People v. Deery, Id. 493 ).

It is also required by law that, upon a motion to vacate and set aside a judgment on a forfeited recognizance, the certificate of the district attorney that the people have lost no rights by reason of the failure of the surety to produce the principal in compliance with the terms of the recognizance given by them, and also a certificate of the sheriff that all fees and charges have been paid, must be annexed to the application (Laws 1882, c. 410, §§ 1482, 1483). The applicant has failed to present such certificates.

The fact that the surety had no notice to produce his principal on the day when the recognizance was forfeited cannot avail, because a party under recognizance may be called on any day during the continuance of the court (People v. Blankman, 17 Wend: 252).

The application should therefore be denied, with ten dollars costs.