
    In the Matter of the Application of Solomon Sayles, Respondent, for a Remission of the Forfeiture of Bail in an Action Entitled “ The People of the State of New York against Henry L. Sayles," Pursuant to Sections 597 and 598 of the Code of Criminal Procedure. The People of the State of New York, Appellant.
    
      Vacation of a judgment entered upon the forfeiture of a recognizance — the Supreme Court may so direct under section 1482 of the New Tork City Consolidation Act — the certificate of the district attorney is not a 'condition precedent thereto — the exercise of the power given by that section and by sections 597 and 598 of the Code of Criminal Procedure is discretionary —it is reviewable by the Appellate Division — after the lapse of sixteen years it should not be exercised.
    
    Section 1482 . of the Consolidation Act, authorizing the Court of Common Pleas to vacate a judgment, entered upon the forfeiture of a recognizance because of the failure of the surety to produce the principal in compliance with the terms thereof, upon the production: of a certificate by the district attorney to the effect that the People have lost no rights by reason of the surety’s failure to produce the principal, and that by reason of the principal being produced the People are in as good a position to prosecute said principal as when the failure occurred, is still in force, and the authority thereby conferred upon the Court of Common Pleas is now vested in the Supreme Court. -
    The production of the district attorney’s certificate is not a condition precedent to the exercise by the court of. its power to remit the forfeiture, particularly where the district attorney in office at the time the forfeiture was declared is d ead.
    The authority to remit the forfeiture of a recognizance, conferred by section 1482 of the Consolidation Act and sections 597 and 598 of the Code of Criminal. Procedure, is a discretionary power, the exercise of which may be reviewed by the Appellate Division.
    Upon an application for the remission of a forfeiture and the repayment to ¡the surety of the money paid in satisfaction of the judgment entered thereon;, it ■appeared that the application was not made .until sixteen years after the pay- • ment of the judgment entered thereon, although the defaulting principal had returned to the jurisdiction of the court twelve years previous to that time. During the interim the money paid in satisfaction of the judgment had been applied to. county purposes. The sole explanation of the delay was a statement by the applicant in his affidavit that he. failed to apply for the relief sought because he was in ignorance of his exact rights in the premises.
    
      Held, that the granting of the application constituted an improper exercise of the discretionary power vested in-the court. :
    Appeal by The People of the State of Mew York, from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of New York on the 27th day of March, 1903, directing that a recognizance in an action entitled “The People of the State of New York against Henry L. Sayles,” forfeited on the 13th day of October, 1886, be remitted and that a judgment in said action, entered in the office of the clerk of the county of New York on the. 13th day of October, 1886, be vacated.
    
      Robert G. Taylor, for the appellant.
    
      Joseph A. Flannery, for the respondent.
   Patterson, J.:

This is an appeal by the People of the State of New York from an order made at a Special Term of the Supreme Court, remitting the forfeiture of a recognizance, vacating and canceling a judgment entered upon such forfeiture, and directing that the comptroller of the city of New York pay to the respondent the sum of $25,000, that being the amount of the recognizance forfeited. The application to the court below was made pursuant to sections 597 and 598 of the Code of Criminal Procedure. It was brought before the court upon a notice of motion- served upon the present district attorney of the county of New York, and was based upon an affidavit of Solomon Sayles, the respondent, in which it was set forth that on the 13th of April, 1886, Henry L. Sayles, his brother, was indicted for the crime of bribery, in the Court of General Sessions of the Peace in and for the city and county of New York; that Henry L. Sayles was held to answer the said indictment, and on that day the respondent gave bail in the sum of $25,000 for the appearance to answer of the said Henry L. Sayles; that Henry L. Sayles failed to appear, and -the bail was forfeited by an order of the court dated the 13th day of October, 1886, and a judgment for the sum of $25,000 was thereupon duly entered against Solomon Sayles, the amount of which judgment was paid to the comptroller and chamberlain of the city and county of New York. The judgment was satisfied on November 24, 1886. Henry L. Sayles left the jurisdiction of the court, and did not return until the 7th of May, 1890, when he voluntarily surrendered himself for trial upon the indictment found against him. Cn the 13th day of June, 1890, the indictment was dismissed. He was indicted for bribery while serving as an alderman of the city of Hew York, in the year 1884. The affiant (respondent), in his affidavit, proceeds to state that when the indictment was dismissed, certain things were said in open court by the then district attorney, indicating that there never had been evidence justifying, the indictment or trial of Henry L. Sayles.; that the affiant verily believes that the People of the State of Hew York lost no rights and were not prejudiced by the absence of the said Henry L. Sayles. The affidavit in this respect-is supported by that of a gentleman who was an assistant district attorney of the county of Hew York in the years 1886, 1887 and 1888. That gentleman, as assistant district attorney, tiled all the indictments found against the aldermen .of the city of- Hew York for .offenses. similar to that of which Henry.L. Sayles was accused, and he swears that he knows that the People lost no rights during his: term of office .by reason of the absence from this jurisdiction of the said Henry L. Sayl'es, because the same evidence, witnesses and facts were available for the prosecution during all that time.

It is provided by section 597 of the Code of Criminal Procedure that after the forfeiture of an undertaking of. bail or the deposit of money in lieu of bail, the court directing the forfeiture, the County Court of the county, or, in the city of Hew York, the Supreme Court, .may remit the forfeiture or any part thereof, upon such term's as are just, Section 598 of the Criminal Code requires that the application must be made upon at least five days’ notice to the district attorney of the county, served with copies of the affidavits and papers on which it is founded, and can be granted only upon the payment of the costs and expenses incurred in the proceedings for the enforcement o£ the forfeiture.

These sections of the Code of Criminal Procedure confer authority and direct the method in which the application shall be made, but section 1482 óf the Consolidation Act, which has special application to the city of Hew York, we deem to be still in force-— the authority conferred upon the Court of Common Pleas by that section being transferred to the Supreme Court. It is provided by that section that the Court of Common Pleas, upon the certificate of the district attorney that the- People of the State of Hew York have lost nó rights by reason of' the failure of a surety to produce a principal in compliance with the terms of a recognizance given by them, and that by reason of the principal being produced, the said People of the State of Hew York are.in as good a position to prosecute said principal as when such failure occurred, may, upon such terms as are just, by order, vacate and set aside any judgment heretofore entered upon the forfeiture of such recogni-. zance against such principal or surety, or either of them, on payment to the chamberlain of all costs included in such judgment, and of all expenses incurred in the apprehension or recapture of such principal.

In this case the certificate of the present district attorney was not obtained. The district attorney in office at the time the indictment was dismissed is dead. The present learned district attorney insists that the procurement and presentation to the court of the certificate mentioned in section 1482 of the Consolidation Act is a con-, dition precedent to the right of a surety to have the judgment vacated and the forfeiture remitted. We do not so regard it. The jurisdiction of the Supreme Court is complete. The provision of-section 1482 of the Consolidation Act should be regarded as only relating to evidence. The power of the court to proceed without it, if it so chooses, we think, is not to be impugned. But the authority conferred by the Code of Criminal Brocedure or by the Consolidation Act is discretionary. It is a judicial discretion, sub-ject to be reviewed by this court, and we are of the opinion that in this case that discretion was not properly exercised and the application should have been denied.

The bail was forfeited in the year 1886, the judgment was paid and satisfied in ¡November of that year, and the money paid became part of the county funds. Sixteen years elapsed before the application was made to set aside the judgment. It is fair to presume that meantime that money was expended by the county for general purposes, and the comptroller should-not be required, after the lapse of sixteen years, to pay to the respondent a large sum of money, which is substantially a gift to him and which must be paid by the taxpayers. It is not as if a fund had remained in the treasury. The respondent has no absolute legal right to this money, as the bail was forfeited. The defendant in the indictment left the jurisdiction, remained away four years, and not until twelve years after his return does the surety move in the Supreme . Court to be relieved ■from the forfeiture. There is no equitable consideration operating' in favor of the respondent under such circumstances, and, indeed, it; is very doubtful whether the authority conferred to vacate this judgment extends so far as to permit the court to direct the comptroller to reimburse money collected on a judgment after that money has been applied to the use of or for county purposes. But, be that as; it may,, the precedent should not be established of permitting moneys not specially retained on deposit to be. drawn from, the public treasury upon applications of this character, after the lapse of many years and the acquiescence of parties in a situation during so long a period of time.

The delay is not sufficiently explained. The respondent states1 merely in his affidavit that he failed to apply for the relief now sought, because of ignorance of his exact rights in the premises.

"We are of the opinion that the certificate of the district attorney is not a prerequisite to the exercise of the power of the court; but we think that, under the circumstances' of this case, the discretion, to remit- the forfeiture and vacate the judgment was not properly exercised, and that the order should be reversed, with ten. dollars costs and disbursements, and that the motion should be denied, with ten dollars costs. •

■ O’Brien, Ingraham, Hatch and Laughlin, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  