People v. Grossman — 5 N.Y.S. 446

Majority

p. 446

People v. Grossman et al.

(Common Pleas of New York City and County,

General Term.

June 3, 1889.)

Headnote

Sail—Vacation on Judgment.

A judgment entered on a forfeited recognizance taken in the special sessions in a prosecution for assault and battery will be vacated where it is shown that complainant appeared and acknowledged satisfaction for the injury, and requested the - discharge of defendant.

Application to vacate judgment entered on forfeited recognizance.

John R. Fellows, Dist. Atty., for the People. David Hirshfleld, for defendant.

A motion to vacate this judgment was made at the general term in March last, and was denied upon the grounds stated in a memorandum of the court. The motion is now renewed upon fuller papers. The memorandum made by the court upon the first application indicated that there was not sufficient proof that the complainant appeared before the court of special sessions, and refused to prosecute the defendant Grossman for the assault and battery with which he had charged him. The record of the cóurt that the complainant declined to prosecute, and an affidavit of the complainant, with a due identification, would present the most satisfactory evidence of this fact. It appears from the papers now before us that the applicant has endeavored to present this evidence. He has produced the record of the court showing that the complainant appeared and acknowledged satisfaction for the injury received, and requested the discharge of the defendant, who was then discharged. He has also shown by the affidavit of his attorney that diligent search has been made for the complainant for the purpose of obtaining from

p. 447

him an affidavit, and that he cannot be found. We think that under the cir•eumstances the surety is entitled to an order remitting the forfeiture and vacating the judgment entered on the recognizance.