
    The People of the State of New York, Respondent, v. Patrick McKenna, Appellant, Impleaded with George Clark.
    
      Undertaking that a prisoner will appear “ during the said examination ” — a subsequent adjournment of the case by the magistrate without notice to the prisoner or the surety releases the surety.
    
    A magistrate of the city of New York adjourned the examination of a prisoner arraigned before him to March seventh, at two o’clock p. m., and admitted him to bail upon an undertaking by which the prisoner and his surety undertook that the prisoner “shall personally appear before the said City Magistrate at the said Magistrate’s Court in the City of New York, during the said examination.”
    Prior to March 7,1901, some person, acting as counsel for the prisoner, requested the magistrate to grant a further adjournment, and during the forenoon of March 7, 1901, the magistrate directed his clerk to make a memorandum upon the papers in the case to the effect that the examination was adjourned to March 31, 1901, at eleven o’clock a. m. At the time that the direction for the adjournment was given no notice was given to the prisoner personally or to the surety, and neither the prisoner, his surety nor any person representing them was present.
    
      The prisoner appeared for examination March 7, 1901, at two p. m., but the magistrate did not appear and the case was not called. March 21, 1901, the magistrate called the.case, and the prisoner not appearing in court, declared the undertaking forfeited, and a judgment was thereupon entered against the prisoner and his surety.
    
      Held, that the judgment should be vacated;
    That the surety had complied with the obligation imposed upon him by the undertaking by producing the prisoner at two o’clock p. m. on March 7, 1901; That the undertaking was governed by sections 191 and 192 of the Code of Criminal Procedure, and was.binding upon the surety only so far as it complied with those sections.
    Ingraham and Hatch, JJ., dissented.
    Appeal by the defendant, Patrick McKenna, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of April, 1901, denying his motion to vacate and set aside a judgment and the execution issued thereon.
    
      Robert C. Ta/ylor, for the appellant.
    
      Charles E Le Barbier, for the respondent.f .
   McLaughlin, J.:

This appeal is from an order denying a motion to vacate a judgment entered against the defendant McKenna and to set aside an execution issued thereon. •

The facts are undisputed, the parties themselves having entered into a stipulation for the purpose of establishing them. From this stipulation it appears that on the 27th of February, 1901, the defendant Clark, upon a warrant issued upon a deposition charging him with having violated section 344 of the Penal Code, was arrested and on the same day arraigned before th'e magistrate — one of the justices of the Court of Special Sessions of the city of New York — who issued the warrant ;■ when Clark was arraigned he was informed, in accordance with the provisions of section 188 of the Code' of Criminal Procedure, of the charge against him and of his right to the aid of counsel in every stage of the proceeding; Clark demanded that an examination be had of the charge and for that purpose ne requested that the hearing be adjourned to some future day; the magistrate, acting upon this request, adjourned the hearing to and fixed the examination for March seventh, at two o’clock t. m., and to insure Clark’s appearance at that time he required him to enter into an undertaking in the penal sum of $2,500, which was given, ■with the defendant McKenna as surety; some time prior to the seventh of March — just when it is not made to appear—some person, who the record does not disclose, then acting as counsel for Clark, requested the magistrate to grant a further adjournment, which he did during the forenoon of March seventh, at just what time does not appear, by directing his then, clerk to make a memorandum upon the papers in the case to the effect that the examination of the defendant was adjourned to March 21, 1901, at eleven o’clock a. m., and the clerk, in pursuance of this direction, made an entry to this effect in his stenographic minutes, and thereafter, but at what time does not appear, he wrote upon an envelope containing the papers in the case the words “ March 21,11 a. m. that when the magistrate directed his clerk to make such memorandum, neither the defendant, his surety, nor any person representing them as attorney or counsel or otherwise, was present, and that such direction for an adjournment was made “ without notice to the defendant personalty and without notice to the surety / ” that on the seventh of March at the time and place originally fixed for the hearing of the examination, McKenna produced Clark for examination, who, with an attorney then representing him, waited for more than one hour in the expectation ” that the magistrate would eall the case for examination; that the magistrate did not appear, the case was not called and no disposition whatever was made of it; that on the twenty-first of March, the magistrate, pursuant to the direction given to his clerk, attended, and Clark being called and McKenna, the surety, not producing him, an order was made forfeiting the undertaking and directing that judgment be entered on the undertaking, in accordance with law, and in pursuance of this order, under section I486 of the Consolidation Act (Laws of 1882, chap. 410), continued in force by the Greater Kew York charter (Laws of 1897, chap. 378), a judgment without notice to Clark or to McKenna was entered against them for the amount specified in the undertaking; thereafter McKenna moved to vacate the judgment and set aside the execution issued thereon, so far as the same related to him, which motion was denied, and he has appealed.

I am of the opinion that the motion should have been granted. The undertaking, except the formal parts of it, was as follows: “An information having been laid before Wm. Travers Jerome, a Magistrate of the City of New York, charging George Clark, defendant, with the offense of vio. of Sec. 344,. Penal Code, and he having been brought before said magistrate for an examination of said charge, and it having been made to appear to the satisfaction of said Magistrate that said examination should be adjourned to some other day, and the hearing thereof having been adjourned, we, George Clark, defendant, * * * and Patrick McKenna, * * * surety, hereby jointly and severally undertake that the above-named George Clark, defendant, shall personally appear before the said City Magistrate at the said Magistrate’s Court in the City of New York, during the said examination, or that we will pay to the People of the State of New York the sum of twenty-five hundred dollars-.”

The proper construction of the undertaking must be determined' when it is read and construed in connection with the statute (Code Grim. Proc. §§ 191, 192) which authorized the magistrate to take it, and the stipulation relating to and connecting with what occurred when it was given. When it is thus considered, it at once becomes apparent that the obligation, and the only one which McKenna, the surety, assumed, was that Clark would personally appear before the magistrate at the time when, and the place to which the examination had been adjourned, viz., in the Magistrate’s Court on the seventh of March, at two o’clockp. m. Did the surety comply with this obligation ? He did according to the stipulation. He produced Clark at that time and place and Clark was then and there ready to proceed with the examination; he expected that the same would take place, and for that purpose was represented by counsel. Notwithstanding this fact, the surety has been held liable, not because Clark did not appear at that time, but because he did not appear on the twenty-first of March, the time to which the examination had been previously adjourned without notice to either Clark or McKenna, and of which neither of them, so far as appears, had any knowledge whatever. Hpon what principle of law a surety .upon such a state of facts can be held liable, I am unable even to conjecture. The surety had complied both in spirit and letter with his undertaking, and having done this a liability on his part could not be created by any act taken by the magistrate, except with his consent, either express or implied.

The learned justice sitting at Special Term denied the motion to set aside the judgment and vacate the execution issued thereon, as appears from his opinion, on the ground that the undertaking required Clark to appear “ not on any certain day, but ‘ during the examination.’ ” But if the undertaking were subject to such construction, which, as it seems to me it is not, in view of the stipulation, it would not aid the People, because it must be read, as already said, in connection with the statute which authorized the magistrate to take it. The only authority which the magistrate had to admit the defendant to bail and to take the undertaking conditioned for his personal appearance at the time to which the proceeding was adjourned, is that derived from the sections of the Criminal Code hereinbefore referred to, and the undertaking in question was only binding upon defendant in so far as it complied with those sections. (People ex rel. Van Aken v. Millham, 100 N. Y. 273; People ex rel. Ritzenthaler v. Higgins, 151 id. 570.) Section 191 provides that the examination of a defendant must be completed at one session, unless the magistrate, for good cause, adjourn it, and that the adjournment cannot be for more than two days at each time, unless by consent or on motion of the defendant, and where an adjournment is had section 192 provides that intermediate the adjournment and examination the defendant may be admitted to bail to insure his appearance at the examination. When the undertaking is thus read in connection with those two sections and also in connection with the stipulation, notwithstanding the fact that no specific time is mentioned for the examination, it at once becomes apparent that it was given for the sole purpose of insuring the defendant’s presence at the time to which the proceeding was adjourned, viz., March seventh at two p. m. Therefore, I am of the opinion that when McKenna produced Clark at that time he complied with the conditions of the undertaking and satisfied the obligation which he had given, and that he could not thereafter be subjected to a liability because the defendant did not appear at some other time or place. The magistrate had no authority, at least so far as the surety on the undertaking was concerned, to adjourn the examination without his knowledge or consent to any other time or place than that contemplated at the time and for .which the undertaking was given.

This view is sustained by a recent decision of the Court of Appeals. I refer to the case of People ex rel. Ritzenthaler v. Higgins (supra), which case in principle cannot be distinguished from this. In that case, when the defendant was arraigned before á magistrate, he requested that the hearing of the charge made against him be adjourned until the ninth of March, and pending such hear-ing he gave an undertaking with a surety. On the ninth of March the hearing, without the consent or request of the surety, was adjourned to the twenty-fifth of March, and on that day was further adjourned until the fourth of May, at which time the defendant-failed to appear, and an order was entered directing the prosecution of the undertaking. The undertaking provided that the defendant would personally appear on the ninth of March at a time stated, and “1 at such other time or times to which adjournments may be had for the purpose of the examination and determination therein.’ ” The court on' appeal held that “the condition of.the bond was satisfied by the appearance of the defendant before the court on the 9th of March and had the trial commenced on that day, without being completed, the obligation of the surety would also extend to subsequent adjournments from time to time for the purposes of the trial and determination. But neither the statute nor the terms of the bond contemplate or provide for successive adjournments, from time to time for an indefinite period, without entering upon the trial as were had in this case. It may be that such adjournments when made by consent of the parties would preserve the jurisdiction of the court over the case and over the parties themselves, but such consent could not enlarge the obligation of the surety. • The statute and the instrument itself should be construed in such a way that the surety would be able to know in advance of the execution the full scope and extent of the obligation which he is about to assume. If the parties, without his consent, can continue the proceeding by adjournments for an indefinite time, it would be impossible for him to know when his liability is to end. If these views are correct, the failure of the defendant in the proceeding to appear before the court on the 4th of May was not a breach of the conditions of the bond as the surety was not bound for his appearance at that timé.”

People v. Scott (67 N. Y. 585) is also an authority to the effect that the motion to vacate this judgment should have heen granted. There the defendant was arrested upon a warrant charging him with the abandonment of his family. An adjournment was had and a bond given, conditioned for his appearance before the justice of the peace who issued the warrant, at nine-thirty o’clock on July 3,1874, “ and from time to time as directed by said justice.” The hearing was adjourned from time to time, entry thereof being made upon the bond. On September 4, 1874, an adjourned day, the defendant did not appear, and the justice made the following indorsement on the bond: “ The within-named Joseph E. Bowe called in open court and failed to appear. Ordered, that the within bond be, and the same hereby is forfeited,” and directed that the same be prosecuted according to law. Held, that these facts did not establish a breach of the condition of the bond, and" that the surety was not liable thereon.

Upon these authorities and the stipulation, therefore, I do not think the surety is liable because the defendant did not appear on the twenty-first of March, at the time and place to which the proceeding had been adjourned. The surety, as already said, had no knowledge of and did not consent that the examination of the defendant be adjourned to that date. What he obligated himself to do was to produce the defendant on the seventh of March, at the time and place mentioned in the stipulation. He complied with that obligation by producing the defendant at that time and place.

For these reasons, I am of the opinion that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Patterson, J., concurred; Laughlin, J., concurred in result; Ingraham and Hatch, JJ., dissented-.

Ingraham, J. (dissenting):

This case comes before us upon an appeal from an order denying a motion to vacate a judgment entered upon an order forfeiting a bond given by this appellant to insure the attendance of one George Clark, arrested for a violation of section 344 of the Penal Code, during his examination before a magistrate. The motion was made upon an agreed state of facts, to which is annexed a copy of the bond and of the order forfeiting the bond. The facts as agreed upon are that on February 26, 1901, a magistrate issued a warrant for the arrest of one Clark ; that on the morning of February 27,1901, Clark was arrested under this warrant and arraigned before the magistrate; that Clark being informed of his right to be represented by counsel, and the deposition upon which the warrant was issued having been read to him, he demanded an examination of the charge against him, and requested that the examination be adjourned to a future day; that thereupon the magistrate adjourned the said examination until two o’clock p. at. on March 7, 1901, and fixed the bail at the sum of $2,500. The appellant in this proceeding became the bail. The undertaking recites that an information had been laid before a magistrate charging Clark with a violation of section 344 of the Penal Code, and that he having appeared before said magistrate for an examination of said charge and the examination having been adjourned “ to some other day,” the appellant, with the said Clark, jointly and severally undertake that the above-named George Clark, defendant, shall personally appear before the said City Magistrate, at the said Magistrate’s Court, in the City of New York, during the said examination, or that we will pay to the People of the State of New York the sum of twenty-five hundred dollars.” There was in this undertaking no time stated at which the defendant was to appear before the magistrate. He was to appear during the said examination.” By reference to the Code of Criminal Procedure under which this bond was given it appears that in section 188, when a person charged with a crime is brought before a magistrate, the magistrate is required immediately to inform him of the charge against him. He must also allow the person charged a reasonable time to send for and employ counsel, and must adjourn the examination for that purpose. (§189.) By section 190 it is provided that the magistrate, immediately after the appearance of counsel, or if none appear and the defendant require the aid of counsel, must, after waiting a reasonable time therefor, proceed to examine the case, unless the defendant waives examination. By section 191 it is provided that the examination must be completed at one session, unless the magistrate for good cause shown, adjourn it; that the adjournment cannot be for more than two days at each time, unless by consent or on motion of the defendant. By section 192 it is provided that if an adjournment be had for any cause, the magistrate must commit the defendant for 'examination, or discharge him from custody, upon his giving bail to appear during the examination.

In construing this bond it must be read in connection with the sections of the Code under which it is given. These provisions for securing to a person charged with crime the aid of counsel upon his examination, allowing an adjournment when the application is made on his behalf for a period not exceeding two days, and requiring the magistrate to admit him to bail when an adjournment is allowed, are all for the benefit of the prisoner and to secure to him an examination conducted according to legal rules under which his rights may be preserved and protected. The statute contemplates that a person accused of a crime shall have counsel. It contemplates that such counsel shall appear for the defendant, performing the ■ usual duties of counsel in such proceedings. It is also contemplated that an adjournment for a considerable period may be necessary to enable the defendant properly to present his case; and when counsel thus employed appears for the defendant and moves for an adjournment, and that motion is granted by the magistrate, it must be conceded, I think, that such a motion was a motion made by the defendant and justifies the magistrate in granting an adjournment. Now, this defendant when arrested and brought before the magistrate was informed of his right to be represented by counsel, and the deposition in support of the information was read to him. He demanded an examination and asked for an adjournment and to be admitted to bail. This was in effect the commencement of the proceeding as required by section 188, and upon granting the adjournment the magistrate was bound by section 192 to commit the defendant for examination or discharge him from custody upon his giving bail “ to appear during the examination * * * to make sure of his appearance at the time to which the examination is adjourned.” The magistrate was, by section 191 of the Penal Code, required to complete the examination at the session upon which the prisoner is brought before him unless for good cause shown he should adjourn it; but the Oode plainly contemplates the necessity for an adjournment after the examination was thus commenced, and where the adjournment is on motion of the defendant, it may be made for any number of days. From the statement of facts it appears that the magistrate complied with this request' and adjourned the further' examination to March seventh. To procure the release of the defendant this undertaking was given, and by it the surety agreed to pay to the People of the State of New York the sum of $2,500 unless the defendant should personally appear before the said city magistrate during the said examination. The examination was commenced and was then adjourned at the request of the defendant. By the express provisions of the undertaking it was not limited to his appearance before the magistrate upon the séventh of March. If that was the obligation assumed, there is no reason why the magistrate should not have so expressed it. There is no provision allowing the magistrate tó require a defendant to give a new bond pending the examination upon the adjourned day or to commit him to custody when he has once given bail; nor to give the surety notice that the examination has been adjourned, whether the surety was present upon the day to which the examination was originally adjourned or not. "When a further adjournment is had, the proceedings upon the adjourned day are a part of the one examination that. the statute requires, and until that examination is completed the defendant is bound to appear, whether it takes one or several days. It is to the entire examination, whether on one or several days, that the bond applies. Assuming then that the surety would have been liable for a failure of the defendant to appear upon the adjourned day, what is it in this proceeding that relieves Mm from liability? Nothing except the fact that upon the first adjourned day the examination was on motion of the defendant’s attorney further adjourned. By the stipulation it appears that before the hour for which the examination was set the attorney for the defendant requested an adjournment of the same, which request the magistrate granted.. As we have seen, the Code contemplates the appearance of an attorney for a person charged with a crime. By the stipulation we must assume that the defendant had procured such attorney and that the attorney was acting for him, and such attorney occupying such relation moved for a further adjournment of the examination. It is not disputed but that the magistrate had' the power to grant such an adjournment on motion of the defendant, and certainly the motion of his duly authorized attorney for such an adjournment must be considered the motion of the defendant. Nor can it be said that the obligation of the appellant was at all affected by the fact that the motion was made by the attorney for the defendant before the hour at which the examination was to take place. I can see no reason why such adjournment, granted under the circumstances detailed, was not an adjournment upon motion of the defendant, and an adjournment which should be granted when essential to the protection of the defendant’s rights; and, where the .surety voluntarily bound himself to be responsible if the defendant should not personally appear before the magistrate “ during the examination ” why he should not continue liable upon the bond, unless the defendant appeared upon the days to which'the examination was finally adjourned.

In People ex rel. Van Aken v. Millham (100 N. Y. 277) the court said : The purpose of the bond required by the statute is to release the defendant from arrest. Without it he would have to remain under arrest, as the examination could not proceed without his presence. * * * If the sureties upon such a bond would be discharged whenever the justices should permit the defendant to leave the room where they were sitting; or'whenever they took a recess for dinner, or adjourned to procure the attendance of a witness; or over night; or over Sunday; or to meet the exigencies contemplated by section 20, the purposes of the statute and of the bond would be defeated. If such were the rule, the defendant would have to be placed under arrest when he came to his examination, or he would have to bring his sureties with him so as .to obtain their assent to the action of the justices. The object of the statute is not only to secure the attendance of the defendant at the adjourned day, but during the trial until the termination thereof. The bond binds him to appear at and during the examination, which may last one or several days, and which may, from the engagements of the justices, or other contingencies, be adjourned from time to time. If this case, after the examination had commenced, had been adjourned over night or over Sunday, would not the sureties have been bound ? And if they would not be discharged in such case, why should they be discharged by any adjournment for several days? After the examination has been entered upon there is no provision for a new bond, and it is not believed that the justices could exact a new one and in default thereof order the defendant under arrest. Having given the bond he is entitled to be at liberty until the close of the examination and the decision thereon. When an examination is thus continued from day to day, or from week to week, it is a continuance of the same court held by the same justices, and it is the same examination and hearing; and ‘the leave to depart’ contemplated by the law is the leave to go at the end of the examination, when the same has in some way been brought to a conclusion, so that the presence of the defendant is no longer required for any purpose, dr some leave to go finally out of the court or from the court. Here there was no leave to the defendant to depart out of the court or from the examination; but he was required to be and' appear on the further hearing of the matter on the adjourned day.”

I have quoted at length from this case as it seems to me to apply to the case at bar and to be a complete answer to the position taken by the appellant. In People ex rel. Ritzenthaler v. Higgins (151 N. Y. 570) the case of People ex rel. Van Alcen v. Millham was referred to with approval, and the case then under consideration was distinguished because in the Higgins case the surety was bound if the. defendant failed to appear on the ninth of March, or at such other time or times to which adjournments might be had for the purpose of examination and determination thereon, and it was held that these “last words were not intended to- cover the case of successive adjournments by the consent of parties.” The decision of that case seems to have been placed strictly upon the form of the bond by which the surety was bound if his principal failed to appear on the day named in the undertaking, and that the words used in the city charter under which this bond was given which allowed adjournments for the purpose of an examination was “ for the purpose of completing an examination already commenced.” But in the Code of Criminal Procedure there is no such provision. There is no limitation upon the power of the magistrate to adjourn an examination on motion of the defendant. In the Higgins case it was held that neither' the statute nor the terms of the bond contemplated or provided for successive adjournments from time to time for an indefinite period without entering upon the trial as they were had in that case. In this case there.was but one adjournment after the adjournment given upon the execution of this bond. That was granted on an application made on behalf of the defendant, presumably for his benefit or protection. It was clearly within the power of the magistrate to make it. The necessity of such an adjournment was recognized by the statute, and the defendant having failed to appear upon the day to which the examination had been at his request adjourned, ■there certainly seems to me to be no reason why his surety should be discharged. The motion is based upon the most technical reasoning, where the form of the adjournment could have made no possible difference to the surety, and the success of such an application would add a serious obstacle to the efficient prosecution of the criminal law.

I think the order appealed from should be affirmed.

Hatch, J., concurred.

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