
    The People of the State of New York, Respondent, v. Alesandro Bellando, Surety, Interpleaded with Michele Reller, Principal, Defendants. Felix Bellando, as Executor, etc., of Alesandro Bellando, Deceased, Appellant; The City of New York, Respondent.
    First Department,
    April 15, 1910.
    Bail —judgment against surety on default occurring after his death.
    A judgment entered on a forfeited hail bond by the clerk of the city and county of New York upon the filing of a certified copy of the order forfeiting the bail, as permitted by section 1480 of the Consolidation* Act, is voidable where the ■ default took place after the death of the surety.
    Such judgment will be vacated and the People left to proceed against the representatives of the deceased surety.
    Entry of judgments after the death of a party discussed, per Ingrahím, P. J¿ Scott and Clarke, JJ., dissented, with opinion.
    
      Appeal, by Félix Bellando, as executor, etc., from an order-of the Supreme Court, made at the Yew York Special Term and entered, in the office of the clerk of the county-of Yew. York on. the 4th day of Yoyember., 1909, denying the appellant’s motion' to vacate and set aside as against Alesandro Bellando a judgment entered’ upon a bail bond executed by Michele Reller,' as principal, and the said Alesandro Bellando, as surety, for $500 conditioned upon the principal’s appearance and; answer to the charge of assault.
    
      Arthur E. Kcmlfuss, for the appellant.
    
      Robert 0. Taylor, for the People, respondent.
    
      Theodore Connoly and Clarence L. Barber, for the City of Yew York, respondent.
   Ingraham, P. J.:

One Michele Reller was arrested and taken before a city magis-. trate upon a charge of assault. He was admitted to bail in the sum of. $500 and furnished .a bail bond to appear and answer the charge in whatever court it might be prosecuted, and,to render himself amenable to the orders and process of the court. • This bond was executed by Reller as principal and Bellando as surety. It appeared that Reller was subsequently indicted and appeared and pleaded not gúilty to the, indictment, and his case was called for trial ondlie 21st ■ of March, 1907. He appeared on that day but the trial was postponed. On the, 17th of August, 1907, Bellando, the surety, died. Subsequent thereto and on Yovember 12, 1907,

i

Reller was called for trial on such indictment but failed to appear,, and on that day the undertaking was, by order of the Court of General Sessions, forfeited; whereupon on the 15th day of Yovember, 1907, the bond was filed in the office of the clerk of the county of.-Yew York', with a copy , of the order forfeiting'the bail, and judgment thereon was entered against the said-Reller and Bellando, although Bellando had died on the seventeenth, of August prior thereto. .. Execution .was-subsequently issued to the sheriff of the county of Yew: York, and Bellando’s executor then mo-v.ed,to vacate, that judgment, and also the execution issued upon said judgment." That motion was.denied and the executor appeals. '

Section - 593 of the Code of Criminal Procedure-provides that, “ If without sufficient excuse, the defendant neglect to appear for arraignment or for- trial * * * the court must direct the fact to be entered upon its minutes; and the undertaking of his bail or the money deposited instead of-bail, as the case may be, is thereupon forfeited.” Section 595 of the said Code provides: If the forfeiture be not discharged, as provided in the last section, the district attorney may, at anytime after the adjournment of tlje court, proceed against any surety upon his undertaking. Such proceeding shall be by action only, except in the city and county of New-York, where it shall be in the method now prescribed by special statute.” Section 1480 of the Consolidation Act (Laws of 1882, chap. 410) provides that “ All recognizances given to answer to a charge preferred, or for good behavior, or to appear and testify in all cases cognizable before any court of criminal jurisdiction, on being forfeited, shall be filed by the district attorney, together with a certified copy of the order of the court forfeiting the same, in the office of the clerk of the said city and county, and thereupon the said clerk shall docket the same in the book kept by him for docketing of judgments, transcripts whereof are filed with him as such clerk, as if the same was the transcript of a judgment record for the amount of the penalty, and the recognizance, and the certified copy of the order forfeiting the recognizance, shall be the judgment record.” It was under these provisions that ■ the bail bond was declared forfeited and the judgment entered thereon against the surety who, at the time of forfeiting the bail, was dead. At any time before the undertaking is declared forfeited, the surety may surrender the defendant in his exoneration (Code Crim. Proc. § 590) and he thereby is relieved from liability. It appears that during the lifetime of the surety he saw to it that the principal responded to all orders of the court in relation to his trial. Neither the principal nor the surety was in default during the lifetime of the surety, and the surety was not liable during his life, as the principal met, so far as appears, all orders of the court and appeared whenever required during the life of the surety. The obligation of the surety was that the principal should appear and answer the charge of assault in whatever court it may be prosecuted and should at all times render himself amenable to the orders and process of the court, and if convicted, should appear for judgment, and render himself in execution thereof, or if he failed to perforin either of these conditions, he would pay to the People of the State of New York the sum of $500.

TJpon this appeal it is not necessary to determiné what effect,-if any, the death of the surety, before the failure of the principal to ■comply with any order of the court, had upon his liability. The only question presented is whether, the judgment could be entered upon such an undertaking after the death of one of the parties against the deceased. There is no express provision of the statute to which our attention has been called which provides for such a case. Section 1480 of the Consolidation Act provides that recognizances, on being forfeited, shall be tiled by the district attorney, together with a certified copy of the order of the court forfeiting the same, in the office-of the clerk of the said city and county, and thereupon- the said clerk shall docket the same in the book kept by him for docketing of judgments, transcripts whereof are filed with him as such clerk, as if the same was the transcript of a judgment record for the amount of the penalty; that such judgment shall in good faith be a lien on the real estate of the persons entering into such recognizance from the tinte of filing said recognizance and copy, order and docketing the same. The language here-used clearly recognizes the existence of the persons liable upon the recognizance, and makes the judgment a lien upon their property. A person who has ceased to exist has no property, and necessarily can be subject to no process. Upon the decease of ah individual he is necessarily divested' of whatever property he had during his life. It then vests absolutely in either his devisees, heirs' at law or his personal representatives; and by the death of a person, who has executed a power of attorney or agreement, the authority granted by the power of attorney terminates by the déath. The rule at common law is discussed in Nichols v. Chapman (9 Wend. 452). The defendant in that case executed a bond and warrant of attorney authorizing a confession of judgment in the penal sum of $10,000, the condition of the bond being for the payment of $5,000. On the tenth of August the defendant died. On the twentiéth of August letters of administration were granted on his -estate. On the eleventh of October judgment was entered upon the warrant as of July term preceding, the death of the defendant being suggested on the record, and on the fifteenth of October an execution, tested as of July term, and returnable at the October term, was delivered to the sheriff and levied on the property of the • deceased. It was stated by Savage, Ch.-J., that the general rule was ■ that the death of either party to a warrant of attorney is a revocation of it; but this rule does not apply where a judgment entered upon such warrant can be made good by relation; that if a person who has executed a bond and warrant of attorney to confess judgment died during the vacation; judgment may be entered against him during the same vacation, as of the preceding term, and it would be valid by the common law. Heapy v. Parris (6 T. R. 368) was alluded to where the judgment was entered in vacation, on which an execution was issued, tested after the 1 defendant’s death. On motion to set aside this judgment and execution the judgment was held to be regular, but the execution set aside, the court saying:' “For the practice is well established of entering judgment,of course, without special motion, during the term or vacation in which the defendant has died, at any time when the judgment can have relation to a period before the death of the defendant. , But a judgment cannot regularly relate back more than one term; if entered in term it relates to the first day of the term; so, also, if entered at any time during the vacation; but a judgment entered in May term or vacation cannot relate to the January term previous.” The court cites Bennet v. Davis (3 Cow. 68). In that case the judgment was on a bond and warrant of an attorney, and was filed on the sixth of May after the commencement of the May term. One of the defendants died on the fourteenth of April, when a motion was made to set aside the judgment upon the ground that, being entered in the May term, it could not relate to the previous term; and upon that ground the proceedings were held to be irregular. There was no authority for entering a judgment upon a forfeited recognizance as of the period prior to the forfeiting of the recognizance. In fact, no liability existed until the recognizance was forfeited ; and upon the undisputed facts in this case,, "no liability actually existed during the lifetime of the surety. There are various provisions in the Code of Civil Procedure authorizing a judgment to be entered after the death of a defendant, but they are .limited to cases in which a decision or verdict or report has been rendered during his life. Thus section 763 of the Code of Civil Procedure provides that “if either party to an action dies, after an accepted offer to allow judgment to be taken, or after a verdict, report or decision'or an interlocutory judgment but before final judgment is entered, the court must, enter final judgment in the names of the Original parties, unless the offer, verdict, report or decision, or the interlocutory judgment, is set aside.” Section 765 provides that “ This title does not authorize the entry of a judgment against a party who dies before a verdict, report or decision is actually rendered against him. In that case, the verdict, report or decision is absolutely void.”. Section 1210 of the Code provides that “ Where a judgment for a sum of money, or • directing the payment of money, is entered against a party after his death, in a case where it may be so taken, by special provision of law, a memorandum of the party’s death must be entered, with the judgment, in the judgment-book, indorsed on the judgment-roll," and noted on the margin of .the docket of the judgment. Such a judgment does not become a lien upon the real property, or chattels real, of the decedent; but it establishes a debt to be paid in the course of administration.” Section 1275 provides that a judgment on a statement for judgment by confession shall not be entered upon such a statement after the defendant’s death. The provision of section 1480 of the Consolidation Act, while authorizing the entry of a judgment against the sureties upon a b,ail bond, can have relation only to living persons. There could be no judgment against, a debtor at common law entered after his death, except for the fiction that was preserved that all judgments entered during the term or vacation were tested as of the first day of the. term, so that the judgment was conclusively presumed to have been entered upon the. first day of the term which preceded the decedent’s death. In the Encyclopaedia, of Pleading and Practice (Yol. 11, p. 843) it is stated that a judgment rendered for or against a party after liis death is either utterly void and may be collaterally attacked, or erroneous and voidable when properly assailed in a direct proceeding for that purpose ; and . from the cases cited in the note it seems that the only question, is whether such a judgment is absolutely void or erroneous and voidable. It has been recognized as a géneral principle that the personal representatives of a judgment debtor have a right to contest the liability of the claim. Such a right certainly is necessary in this case, as the question whether or not there is any liability where the default first happened after the death of the bail so that no liability existed at the time of his death is one not entirely free from doubt.

I think, therefore, that this judgment was at least voidable, having been entered upon a liability which did not accrue until after the death of the surety, and for that reason the court below should have vacated the judgment, leaving the People to proceed against the personal representatives of the deceased surety as'they should be advised, and the order appealed from should, therefore, be reversed, with ten dollars costs and disbursements and motion granted.

McLaughlin and Dowling, JJ., concurred ; Clarke and Scott, JJ., dissented.

Scott, J. (dissenting):

I dissent. It seems to be well settled that the obligation of a surety on a bail bond survives and binds his estate after death (5 Cyc. 126 ; United States v. Keiver, 56 Fed. Rep. 422), for as was said in the case last cited : Such obligations would be of but little force and service if they did not survive the death of the surety. It is a continuing obligation and binds the estate of the obligor upon liis death.” The serious question in the case is whether judgment upon a forfeited recognizance may be entered and docketed against a surety after his death. There is no express statutory provision either Way. All that the statute provides is that upon forfeiture the recognizance, with a certified copy of the order forfeiting the same, “ shall be filed by the district attorney ” in the oifiee of ■ the clerk of the county, who shall thereupon “ docket the same in the book kept by him for docketing of judgments.” (Laws, of 1882, chap. 4Í0, § 1480.) The duties imposed upon the district attorney-and the county clerk are mandatory, and the statute leaves them no option, even if they could be presumed in each case (as they cannot) to know'whether-the surety is alive or dead. The legality of this method of entering judgment is no longer open to question. (People v. Quigg, 59 N. Y. 83; People v. Cowan, 146 id. 348.) The moment the principal makes default and liis non-appearance is entered in the minutes the recognizance becomes ipso facto forfeited. ]SFo further or formal order is necessary to fix the liability of the surety. His obligation to pay the amount of the bail then accrues and becomes absolute upon the record. (People v. Bennett, 136 N. Y. 482.) The entry of judgment in the name of a dead man is not necessarily irregular or void. Under certain circumstances it might be done under the common law practice,, and may be done under our present Code practice. Under the old practice it feould be done by entering the judgment as of the beginning of the term during which the death occurred. (Nichols v. Chapman, 9 Wend. 452.) Section 763 of the Code of Civil Procedure provides that “ if either party to an action dies after an accepted offer to allow judgment to be taken, or after a verdict, report or decision or an interlocutory judgment, but before final judgment is entered, the court must enter final judgment in the names of the original parties, unless the offer, verdict, report or decision or the interlocutory judgment is set aside.” Section 765 provides: This title does not authorize the entry of a judgment against a party who dies before a verdict, report or decision' is actually rendered against him. In that case the verdict, report or decision is absolutely void.” The distinction between the two classes of cases thus provided for is very obvious. If the debtor’s liability is definitely fixed, so that there is nothing left to litigate, the judgment, which is merely .the. formal record of the indebted ness, may be entered, notwithstanding the debtor has died. ' It then becomes conclusive evidence of the debt owing by his estate. . If, however, there is something left which may be open to further liti-. gation which the debtor cannot carry on, judgment cannot be entered against him and the claim against his estate must be otherwise established. By analogy it would seem, in the absence of any statute forbidding it, that a judgment upon a forfeited recognizance may be issued after the death of a surety, for there is nothing which he could,, if alive, have litigated. The amount of his. obligation is fixed by the bail bond, and .his liability thereon is fixed by the failure of his principal to appear, a fact of which he is not entitled to notice and which he cannot contest, except, perhaps, on a motion to vacate the judgment. The learned counsel for the appellant cites ns to a number of cases as authority for the general proposition that judgment, cannot be entered against a dead man. They all fall within the class of cases provided for by section 765 of the Code, and are not decisive of the present motion. I am, therefore, of the opinion that the judgment was properly entered in pursuance of the mandatory provisions of the act of 1882 quoted above, and that it cannot be attacked by the executor of the surety, except upon some ground that would have justified an attack upon it by the surety if alive. What the effect of such a judgment is it is not necessary now to inquire. It probably does not .become a lien upon, the real property or chattels real of the decedent, but establishes a debt to be paid in the course of administration. (Code Civ. Proc. § 1210.)

In my opinion, the order appealed from is right and should be affirmed, with ten dollars costs^and disbursements.

Clarke, J., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted. 
      
       See Code Crim. Proc. § 595, since amd. by Laws of 1909, chaps. 119, 590.— [Rep.
     