People v. Goltze — 16 Daly (N.Y.) 62

Majority

p. 62

The People of the State of New York, Respondents, against Henry Goltze et al., Appellants.

(Decided February 10th, 1890.)

Headnote

On an application to set aside a judgment on a forfeited recognizance, where it appears that the applicant is entitled to the relief asked, he will be allowed an order on the comptroller directing a repayment of the amount of the recognizance, but not of the costs of entering judgment; it appearing that the money was paid to the comptroller, though he produces no certificate to that effect from the comptroller^

Application to vacate a judgment on a forfeited recognizance,-and for a repayment of the moneys paid in satisfaction thereof.

The facts are stated in the opinion.

Ashbel P. Fitch, for the motion.

John R. Fellows, opposed.

[Present, Larremore, Ch. J., Bookstaver and Bischoff, JJ.]. Judgment on the'forfeited recognizance was vacated and directed to be cancelled of record, by the May, 1889, General Term of this court, but through inadvertence the defendant failed to incorporate in his order a direction to the comptroller to repay him the amount of the judgment. Discovering the mistake, an application was made to the November General Term to cure it, but on that application the defendant .failed to give notice to the district attorney, and also failed to produce a certified copy of the order discharging the recognizance. In a memorandum made at the time the defendant was also directed to procure a certificate of the comptroller that the amount had been deposited with him. The defendant has now complied with all of these requirements, except the production of the certificate from the comptroller, which he says the comptroller refuses because he has no authority to give the same,

p. 63

and it is not customary to do so, and in this, we think, he is right. The fact, however, of the payment of the money to him is apparent from the papers, and we think the plaintiff should have an order directing the comptroller to pay to the defendant or his attorney the amount of the forfeited recognizance, $300, but not the amount of the costs of entering judgment, $42.60.

Order accordingly.