People v. Street — 38 N.Y. St. Rep. 801

Majority

p. 801

The People v. Louis S. Street.

(New York Common Pleas, General Term,

Filed June 1, 1891.)

Headnote

Bail—Forfeiture—Former adjudication.

The court of general sessions has concurrent jurisdiction with this court to entertain applications to vacate judgments entered upon forfeited recognizances, and when such an application has been heard upon the merits and determined in either tribunal it is res adjudieata and cannot be entertained by the other. If any facts were omitted on the first application a rehearing should be sought in the court to which it was made.

Application to vacate judgment entered upon forfeited recognizance.

Frank J. Keller, for petitioner; DeLancey Nicoll, for the People.

The petitioner, Charles Stanton, became the bondsman for Louis S. Street, who was charged in two indictments with offenses under the Penal Code. The defendant, having been called to answer the indictments, failed to appear, and his bail-bond was declared forfeited, and judgment for the amount thereof was entered against the petitioner on the 14th day of October, 1889. The petitioner now makes an application asking this court "to remit the forfeiture and vacate the judgment entered thereon.

It appears from the papers herein that on or about the 2d day of October, 1890, the petitioner made an application for the relief now sought for to the Hon. Randolph B. Martine, one of the justices of the court of general sessions, which application was heard upon the merits and denied.

By chap. 379, Laws 1878, as amended by chap. 481 of Laws of ^ 1879, Code of "Grim. Pro., § 597, and Laws 1882, chap. 410, the judges of the court of general sessions are given concurrent jurisdiction with this court to entertain and determine an application for the remission of a recognizance and to vacate the judgment entered thereon. It follows that a petitioner seeking relief from a forfeiture of his recognizance may make his application to this court or to any judge of the court of general sessions. When, however, such an application has once been heard upon the merits and determined in either tribunal, it cannot be entertained by the

p. 802

other, and thus in effect a review had of the former application in the absence of express authority therefor. The well settled principle of law that “the judgment of a court of concurrent jurisdiction directly upon the point is, as a plea, a bar, or as evidence conclusive between the same parties upon the same matter directly in question in another court,” Green leaf on Evid., § 528; Duchess of Kingston's Case, 20 How. St. Tr., 538, should, in our judgment, be applied to adjudications of this character, for the judicial determination of a summary application authorized by statute is in effect a judgment, since it adjudicates the right of the applicant to the relief sought.

There is no difference in the rule of res adjudícala whether the' first adjudication is made in a formal action or in proceedings summary in this character, because even when there is not a technical judgment in the latter, it is a judicial act; it is a duty confided to judicial officer to be exercised in a judicial way. The parties are heard and their rights are settled by judicial determination. Dem arest v. Dary, 32 N. Y, 281 ; Supervisors v. Briggs, 3 Den., 33 .

It is claimed by the petitioner that when the application was made to Judge Martine, of the court of general sessions, certain facts mentioned in the affidavit of the said petitioner, which is attached to his present application, were not presented. If that be the fact, the petitioner’s remedy is to apply to that judge for a rehearing of his application.

Application dismissed, without costs.

Bischoff and Pryor, JJ., concur.