
    The People of the State of New York, Appellant, v. Jacob Levy, Respondent.
    First Department,
    November 5, 1915.
    Crime—when judgment upon forfeited recognizance may be vacated and cash bail ordered returned.
    Upon an application to vacate a judgment entered upon a forfeited recognizance, and to compel the return of the cash bail applied to the payment of said judgment, the applicant, in the absence of the certificate of the district attorney that the People have lost no rights by reason of the failure of the surety to produce his principal, must affirmatively show such fact.
    The mere fact that after a fugitive is captured or surrenders, he is acquitted upon trial, does not of itself prove that the People lost nothing.
    After a judgment entered upon a forfeited recognizance has been collected or cash bail has been paid over to the comptroller in satisfaction of the judgment and mingled with the city’s funds, it cannot summarily be ordered to be paid back.
    Hence, where an accused person after being released upon a cash bail failed to appear and the bail was forfeited, and the amount thereof turned over to the city comptroller and the accused thereafter surrendered himself, and the complaining witness so modified his testimony that a discharge was granted, an application by the surety to recover the amount of the cash bail should not be granted, where it does not satisfactorily appear that the People lost nothing by the failure of the accused to appear.
    
      Appeal by the plaintiff, The People of the State of New York, 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 23d day of June, 1915, vacating a judgment entered upon a forfeited recognizance, and directing the return of the cash bail applied to the payment of said judgment.
    
      Robert S. Johnstone, Assistant District Attorney, for the appellant.
    
      Elias Rosenthal, for the respondent.
   Scott, J.:

Jacob Levy was arrested by a railroad policeman at the Grand Central Station in the city of New York, and was arraigned before a city magistrate charged with disorderly conduct and an attempt at pocket picking. He applied for an adjournment and one Henry Knoch became his surety, depositing $1,000 in cash as bail. On the adjourned day Levy applied for a further adjournment which the magistrate granted only until two o’clock of the same day. At that time Levy failed to appear, his bail was forfeited and a judgment entered, whereupon the chamberlain with whom the bail had been deposited turned it over to the comptroller in satisfaction of the judgment. Some days later Levy surrendered himself in the Magistrate’s Court. The officer who had made the complaint opportunely appeared in court at the same time, although it does not appear that he had been subpoenaed by the People, and on being called so modified his testimony against Levy that the magistrate felt bound to discharge him, not, however, without a significant warning to keep away from the Grand Central Station on football days.

Thereupon an application was made to a justice of the Supreme Court on behalf of Knoch that the judgment of forfeiture be vacated and the comptroller ordered to return the cash applied to the satisfaction of the judgment. On the first application the justice denied the motion unless the district attorney should certify that the People had lost no rig] its by reason of the forfeiture. The district attorney refused to make such a certificate whereupon the application was again made to the same justice, who unconditionally granted the motion by the order now appealed from.

The respondent, of course, relies on the often cited case of Matter of Sayles (84 App. Div. 210), which is relied on as holding that, under section 1482 of the Consolidation Act (Laws of 1882, chap. 410), the procurement and presentation to the court of the certificate of the district attorney that the People have lost no rights by reason of the failure of a surety to produce his principal, is not a condition precedent to the right of a surety to have the judgment vacated and the forfeiture remitted, but was a mere provision relating to evidence. In point of fact the case cited is not an authority for the doctrine attributed to it, which was not necessary to the decision and merely expressed the opinion of the learned justice who wrote.

Whether that dictum should be followed will be determined when the necessity for considering the question arises. For-the present it is sufficient to lay down these rules: First, that in the absence of such a certificate the applicant must affirmatively show that the People, in fact, lost nothing by the surety’s failure to produce his principal; second, that the mere fact that after a fugitive is captured or surrenders, he is acquitted upon trial does not of itself prove that the People lost nothing; third, that after a judgment has been collected, or cash bail has been paid over to the comptroller in satisfaction of the judgment and mingled with the city’s funds, it cannot be summarily ordered to be paid back. This is really what was decided in the Sayles case.

In the present case it by no means satisfactorily appears that the People lost nothing by Levy’s absconding. On the contrary, there is strong ground for the suspicion that his absence may have had much to do with the amelioration of the testimony of the complaining witness. The order appealed from is reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Ingraham, P. J,, Laughlin, Clarke and Dowling, JJ., concurred.

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