
    The People of the State of New York, Appellant, v. Bella Abrams, Principal, and Morris Mandelskorn, Surety. Bessie Tucker, Respondent.
    First Department
    April 20, 1916.
    Crime — county of Mew York — bail — forfeiture—title to money forfeited — vacation of judgment of forfeiture — certificate of district attorney under section 1483 of Consolidation Act.
    The liability of a principal and surety becomes fixed upon the entry of an order of forfeiture of bail in the county of New York, and upon the entry of judgment by the district attorney title to the money becomes absolute in said county.
    Where a defendant arrested in the county of New York was held in bail, but failed to appear and did not surrender for some twenty months after her default, and was then acquitted, probably on account of the failure of the police officer to remember accurately the facts, it is not only possible but probable that the People were prejudiced by the defendant’s failure to appear, and the district attorney would not have been warranted in giving a certificate under section 1483 of the Consolidation Act to the effect that the People had lost no rights by reason of the failure of the defendant’s surety to produce her in compliance with the terms of a recognizance given by them, and if he had given it, the court would not have been justified in vacating a judgment of forfeiture.
    Section 1483 of the Consolidation Act is not mandatory with respect to the action to be taken by the court after the production of a certificate of the district attorney that the People have lost no rights by reason of the failure of a surety to produce a principal in compliance with the terms of the recognizance given by them.
    
      It seems, from the provisions bf said section of the Consolidation Act, that the Legislature intended that the certificate of the district attorney should be a prerequisite to relief from forfeiture.
    Appeal by the plaintiff, The People of the Stake 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 13th day of January, 1916, granting a motion for the resettlement of an order and resettling an order of the Special Term made on the application of the respondent Bessie Tucker, remitting a forfeiture of bail herein, vacating the judgment of forfeiture, and directing the city chamberlain to pay to said respondent, or to Morris Mandelskorn, her surety on the undertaking, the sum of $500, being the amount paid on the forfeiture of the bail.
    
      Robert S. Johnstone, Assistant District Attorney [George A. Lavelle, Deputy Assistant District Attorney, with him on the brief], for the appellant.
    
      Samuel Fine [Julius L. Pinnes with him on the brief], for the respondent.
   Laughlin, J.:

On the 26th day of July, 1913, the respondent was arrested by a police officer on the charge of having committed an act of prostitution in a tenement house, and was held in bail in the sum of $500. When taken to the police station she gave the name Bella Abrams and sent for Morris Mandelskorn, and delivered to him the sum of $500 which he and she now claim was intended to be used as cash bail; but it was not so used, and she executed an undertaking with him as surety for her appearance in the Magistrate’s Court at nine A. M. the next day. She defaulted in appearing, and on the 28th day of July, 1913, the undertaking was forfeited, and the judgment entered thereon was paid by the surety on that day. She claims to have been misinformed with respect to the time at which she was required to appear, and that when she did appear she was informed by an officer at the police station that her case was not on the calendar, and that she was at liberty to go. She made no further inquiry and took no step with a view to procuring the return of her money, until June, 1914, when she heard that bankruptcy proceedings were pending against her surety. She claims that she then, through her attorney, instituted an inquiry and discovered the facts with respect to what had taken place. On the 7th day of April, 1915, she surrendered and was arraigned and tried before a magistrate, and she was acquitted, evidently on account of the failure of the police officer to remember accurately the facts which transpired nearly two years before. She then applied to the district attorney to have the bail money refunded, and he refused to consent thereto; and on a petition verified on the 26th day of October, 1915, she applied to the court and obtained the order from which the appeal is taken.

The liability of the principal and surety became fixed upon the entry of the order of forfeiture. (People v. Bennett, 136 N. Y. 482; People v. Parisi, 217 id. 24.) It then became the duty of the district attorney to enter the judgment (Consol. Act [Laws of 1882, chap. 410], § 1480) and to endeavor to collect it (People v. Salomon, 212 N. Y. 446) and to turn over the money collected to the county treasurer. (County Law [Consol. Laws, chap. 11; Laws of 1909, chap. 16], § 201.) The title to the money thereupon became absolute in the county, which might apply it to the use of the county and presumably it was so applied. There is no right to the remission of such a forfeiture unless granted by statute. The statutory provisions authorizing the remission of moneys collected in satisfaction of such a judgment of forfeiture in the county of Hew York are those contained in section 1483 of the Consolidation Act, which so far as material to the question presented for decision provide that the courts therein specified “may, upon the certificate of the district attorney that the People of the State of Hew York have lost no 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, whether such principal has been tried or whether a nolle prosequi has been entered or not, by order vacate and set aside or modify any judgment heretofore entered or that may be hereafter entered upon the forfeiture of such recognizance against such principal and surety, or against either, and as to either, on payment to the chamberlain of all costs included in such judgment or judgments, and of all expenses incurred in the apprehension or recapture of such principal, and if such fine shall have been paid or judgment collected, in whole or in part, upon such forfeited recognizance, the court may, in its discretion, direct the same or any part thereof to be remitted, and the officer, district attorney, or chamberlain, in whose hands the money remains, must pay the same or the part remitted, according to the order, retaining the costs, if any, as aforesaid.” It would seem from these provisions that the Legislature intended that the certificate of the district attorney should be a prerequisite to such relief; but it was stated obiter in a unanimous opinion by this court in Matter of Sayles (84 App. Div. 210), where the district attorney in office at the time of the forfeiture whose certificate it was claimed was a condition precedent to the remission had died, that the court might act without such certificate on satisfactory proof of the facts which the certificate would afford. When, if ever, a case shall arise in which it is impossible by death, or otherwise, to obtain the certificate of the district attorney, or the certificate is arbitrarily withheld, and the forfeiture is of such a technical nature that it is perfectly clear that the People could not have been prejudiced, it will be necessary for the court to consider the soundness of that dictum in Matter of Sayles (supra), and that will necessarily have to be tested by an examination of the Inherent power of the court and the history of the legislation to ascertain the true spirit and intent of the law with respect to requiring the certificate of the district attorney. In the case at bar, however, where the respondent did not surrender for some twenty months after her default and was then acquitted, it is not only possible, but it is probable, that the People were prejudiced by the failure of the respondent to appear, and the district attorney would not have been warranted in giving the statutory certificate, and if he had given it, the court would not have been justified in granting the relief sought, which does not follow from the production of the certificate of the district attorney alone, for the statute is not mandatory with respect to the action to be taken by the court. (See People v. Levy, 169 App. Div. 571; People v. McGinnis, 15 N. Y. St. Repr. 382; People v. Flegenheimer, Id. 376; People v. Tietjen, 7 N. Y. Supp. 642; People v. Heit, 152 App. Div. 179; People v. Fisher, 8 N. Y. St. Repr. 382; People v. Samuels, 28 id. 168; People v. Devine, Id. 404; People v. Dale, 169 App. Div. 940; People v. Flower, 173 id. 891; People v. Schwarze, 168 id. 124; People v. Kurtz, 16 Daly, 188.)

It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

Clarke, P. J., Dowling, Page and Davis, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Order to be settled on notice.  