Majority
p. 619The People, Resp’ts, v. William Nooney, Def’t. (Supreme Court, General Term, Second Department, Filed May 9, 1892.)
Headnote
Bail—Remission of forfeiture—Limitation.There is no restriction as to the time when a county court can remit a forfeiture of bail, and it may be done even after judgment on such forfeiture.
Appeal by Thomas F. Farrell, surety, from order of the county court of Orange county, denying motion to remit the forfeiture of a bail bond on the ground of want of power to do so because of the entry of judgment upon such forfeiture.
William Hooney was indicted in Orange county, in April, 1890, for assault in the second degree, and Thomas F. Farrell signed his bond as surety for his appearance whenever required for trial. The case was moved for trial May 19, 1890, and on Hooney’s failure to appear the bond was duly forfeited. In June, 3 890, an action was commenced against Farrell on the bail bond in the supreme court, and resulted in the entry of a judgment January 7, 1891, for the sum of $420.10. After the recovery of said judgment Hooney was arrested in Hew York city for another crime committed after the recovery of this judgment, plead guilty, and was there sentenced to imprisonment for a term of years.
On the second day of February, 1891, a motion was made . on behalf of Farrell in the Orange county court for an order remitting the forfeiture on the bond. The order was refused on the ground that as judgment had been recovered in the supreme court the remission of the forfeiture would be unavailing unless ■default in the action in the supreme court were first opened. A motion was then made in the supreme court before Mr. Justice Barnard to have the default opened, and this motion was denied upon the merits. The motion in the county court was then renewed on the 26th of May, 1891, and resulted in the granting of an order at a subsequent term of the said court denying the motion for want of.jurisdiction, from which order this appeal was taken.
p. 620
John W Lyon, for app’lt; M. H. Hirschberg, ¿list, att’y, for resp’ts.
We think the county court ha¿i power to remit the-forfeiture of bail in this case.
There seems to be no limit of time specified in § 597 of the Code of Criminal Procedure; and § 598 seems to imply that it can be remitted after proceedings to enforce the forfeiture have been commenced, as it provides that such a motion can be granted “ only upon payment of the costs and expenses incurred in the proceedings for the enforcement of the forfeiture.”
Beading the two sections together it seems plain that there is no restriction as to time when the county court can make the remission.
Order reversed, with costs, and matter remitted to county court, for rehearing.
Barnard, P. J., and Dykman, J., concur.