People v. Flynn — 28 N.Y. St. Rep. 18

Majority

p. 18

The People, Pl’ffs, v. Patrick Flynn and Patrick J. Carroll Def’ts.

(New York Common Pleas, General Term,

Filed December 2, 1889.)

Headnote

Recognizance—Forfeiture, when vacated.

Defendant’s absence when the case was called was due to his removal from his former place of residence. He was subsequently surrendered, found guilty, and sentenced to pay a fine. Held, that judgment on the forfeited recognizance would be vacated.

Application to vacate judgment on forfeited recognizance.

Wm. J. Nicholson, for def’ts; J. B. Fellows, dist. att’y, for pl’ffs.

This was a prosecution under the excise law for keeping open on Sunday a place duly licensed for the sale of spirituous liquors at 50 Rutgers street. The recognizance was forfeited on the 25th March, 1889, and the reason of the prisoner not being present on that day when his case was called was due to his removal from his former place of employment and residence, and that his surety did not ascertain the fact of his non-appear-once until subsequent to the forfeiture. On August 6, 1889, the surety produced the principal in court, who was thereupon tried for the offense, found guilty, and sentenced to pay a fine of thirty dollars, which has been paid.

It does not appear that the people have lost any rights by reason of the delay. The application should, therefore, be granted.

Larremore, Ch. J., Daly and Van Hoesen, JJ., concur.