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People v. Schwartz

33 N.Y. Crim. 184 Court SUPREME COURT—APP. DIVISION—SECOND DEPARTMENT, English

Judges Present: Jenks, P. J.; Thomas, Stapleton and Rich, JJ.

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SUPREME COURT—APP. DIVISION—SECOND DEPARTMENT,
May 1915.
THE PEOPLE APPELLANT v. FRANK SCHWARTZ.

Headnote

Bah.—Remission of forfeiture of criminal bail undertaking.
Defendant gave an undertaking in bail and his principal defaulted within a few days and was never produced. Judgment for $300 was later entered but was reduced on application to county court to $150, although defendant was not in distress. Held, that the order reducing the judgment be vacated and it be reinstated for balance of $150.
Present: Jenks, P. J.; Thomas, Stapleton and Rich, JJ.
Appeal by 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; also from an order of said court, entered in said office on the 2d day of February, 1915, denying a motion to resettle the first mentioned 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. Ferry 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

p. 185
the County Court the judgment was reduced from $300 to $150, which was paid forthwith. The People appeal.

The defendant never produed 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 , aff’d 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.

In passing upon such application 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.

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