People v. Bellando — 199 N.Y. 533

Majority

p. 533

The People of the State of New York, Appellant, v. Alesandro Bellando et al., Defendants. Felix Bellando, as Executor of Alesandro Bellando, Deceased, Respondent.

Headnote

People v. Bellando, 137 App. Div. 777 , 948, affirmed.

(Submitted June 1, 1910;

decided June 17, 1910.)

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered April 15, 1910, which reversed an order of Special Term denying a motion to set aside the forfeiture of a recognizance, the judgment entered, and the execution issued thereon, and granted said motion.

The following question was certified : “ Can a judgment on a forfeited recognizance or bail bond be entered against a surety without action, where the surety was guilty of no breach of the condition of the bond during his life, and the surety died before the bond was forfeited, and the order of forfeiture was filed after his death ? ”

Charles 8. Whitman, District Attorney (Robert C. Taylor of counsel), for appellant.

Archibald It. Watson, Corporation Counsel (Theodore Connoly and Clarence I. Barber of counsel), for City of New York.

Arthur E. Kaulfuss and Joseph 2£. Callahan for respondent.

Order affirmed, with costs, and question certified answered in the negative on the opinion of Ingraham, P. J., below.

Concur: Gray, Vann, Hiscock and Chase, JJ. Dissent: Cullen, Oh. J., Haight and Werner, JJ.