
    The People, App’lts, v. Amariah Hammond, Impleaded, etc., Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 19, 1889.)
    
    1. Bail — Liability of sureties hot affected by failure of principal TO ACKNOWLEDGE.
    Failure of the principal to acknowledge his signature to an undertaking for his appearance for trial does not affect the liability of the sureties who have properly executed it.
    3. Same — Forfeiture.
    Where the district attorney stated that he would not move the indictment at that term, and the accused, in good faith and relying on such statement, left the court and did not further attend the term, Held, that a forfeiture of the bond for non appearance was improper.
    Appeal by the plaintiff from the judgment of the special term of this court in Livingston county, dismissing the complaint, upon the merits.
    
      George W. Daggett, for app’lts; F. C. Peck, for resp’t.
   Macomber, J.

One of the original defendants to this action?. Amariah Bradner, was indicted at the oyer and terminer held in Livingston county in the month of May, 1886, for the crime "of larceny in the second degree. Upon the presentment of the indictment, the same was sent to the court of sessions of that: county for trial. Subsequently the accused as principal and this appellant, Amariah Hammond, and another as sureties executed an undertaking in the sum of $500 for the appearance of the accused. This undertaldng was properly acknowledged by the sureties who duly justified as such, but the same was not acknowledged by the principal.

The learned judge before whom this action was tried has dismissed the complaint upon the ground that the failure of the-principal to acknowledge the undertaking was fatal to any claim of liability against the sureties thereto. To this proposition we-can not assent. The statute permits the defendant, whether in a. -civil action or in an indictment, to execute an undertaking with or without sureties. Code Grim Procedure, § 581; Code Civil Procedure, §§ 810, 811.

Had Bradner not been a party to this paper in name, no questian could have been raised in regard to the liability of the sureties thereto under these provisions of the several Codes. H there be a fallacy in the reasoning of the learned judge, it consists in the proposition that inasmuch as the recognizance is required to be a record that it therefore must be acknowledged by all of the parties thereto whose names appear thereon. The surety, having undertaken in the form stated for the faithful appearance of the accused for trial, is not in a position to avail himself of any mere formal defect in the instrument which applies to another party thereto, and not to himself.

But there are other grounds upon which this judgment may be maintained. It is found as a fact by the trial court, which finding is abundantly sustained by the testimony of two reputable members of the bar of long standing, that at the adjourned term of the court of sessions held in the latter part of June,the defendant Bradner was there ready to appear when required, and-his counsel was at the court. On inquiry by the counsel for the accused, the district attorney stated, and this too at a time before any forfeiture <of bail is claimed, that he should not move the indictment against the accused at that term. Thereupon, under direction or advice of counsel, Bradner was induced by such statement of the district attorney to leave the court at Geneseo, and not further to attend upon that term, and he did so in perfect good faith, understanding by the information which he had received that his presence was not required there longer.

The force of this testimony is sought to be broken in part by the argument of the learned district attorney, that his statement made to counsel and so communicated to the accused did not necessarily relate to the indictment in question, but to others of a -series of indictments, of which this was one. But no such limitation can be made upon the force and effect of this statement as disclosed by the evidence. It is quite unreasonable to believe that these gentlemen of large experience in the practice of the courts should knowingly have conveyed to their client information in one case which they knew had been derived only in another. The subsequent voluntary appearance of the defendant in the indictment at the court of oyer and terminer, to which the ■case had been sent back, corroborates the proposition of the defendant’s counsel that the accused acted upon the information .given to his counsel by the district attorney.

The judgment should be affirmed.

Barker, P. J., and Dwight, J., concur.  