People v. Goltze — 8 N.Y.S. 530

Majority

p. 530

People v. Goltze et al.

(Common Pleas of New York City and County, General Term.

February 10, 1890.)

Headnote

Bail—Forfeited Recognizance—Order for Repayment.

Where a judgment on a forfeited recognizance is vacated, but defendant omits to incorporate in his order a direction to the city comptroller to repay him the amount thereof, his failure to procure, as required by an order intended to cure the omission, a certificate from the comptroller that the amount had been deposited with him, because of the comptroller’s refusal to give the certificate, will not affect defendant’s right to an order for the repayment of the money, its payment to the comptroller appearing from the papers.

On application for an order directing the city comptroller to repay the amount of a judgment on a forfeited recognizance which had been vacated.

Argued before Larremore, C. J., and Bookstaver and Bischoff, JJ.

John R. Fellows, Dist. Atty., for the People. A. P Fitch, for defendants.

Judgment on the forfeited recognizance was vacated, and directed to be canceled of record, by the May, 1889, general term of this court; but, through inadvertence, the defendants failed to incorporate in their 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 defendants 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 defendants were also directed to procure a certificate of the comptroller that the amount had been deposited with him. The defendants have now complied with all of these requirements, except the production of the certificate from the comptroller, which they say the comptroller refuses because lie has no authority to give the same, 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 defendants or their attorney the amount of the forfeited recognizance, $300, but not the amount of the costs of entering j udgment, $42.60. Ordered accordingly.