People v. Nooney — 56 N.Y. St. Rep. 155

Majority

p. 155

The People, Resp’ts, v. William Nooney, App'lt.

(Supreme Court, General Term, Second Department,

Filed December 1, 1893.)

Headnote

Cbiminal law—Recognizance.

The fact that the defendant in a criminal bond, some time after forfeiture and judgment thereon, was sentenced, in another court, to imprisonment, is no ground in favor of the surety, for a remission of the forfeited recognizance.

Appeal from an order denying a motion to set aside a judgment rendered on a forfeited recognizance.

John W. Lyon, for Thomas F„ Farrell, surety, app’lt; M EL Birschberg, for resp’t.

The papers show that in April, 1890, the defendant, William Mooney, was indicted in Orange county for an assault in the second degree. The defendant gave a bond with Thomas F. Farrell, as his surety, for his appearance at the trial. The indictment was regularly before the court of sessions of Orange county, in May, 1890, for trial, and the defendant did not appear. The bond was forfeited, and judgment recovered upon it by the People, on the 7th of January, 1891. Mo case is made for a remission of the forfeiture. The only reason given is that, in January, 1891, or soon after, the defendant Mooney, pleaded guilty to a charge of larceny in the first degree in Mew York, and was sentenced to a long period of imprisonment. At the time of the default, no reason existed why the defendant did not appear for trial. If it had then been impossible for the defendant to appear, a good case would be made for a remission of the forfeited recognizance. This cause of action was complete, and judgment recovered upon it before, by the criminal act of the defendant, he became a convict, and was sentenced to the state prison. The bond should, therefore, be paid.

Order affirmed with costs.