
    The People, Pl’ffs, v. Thomas Higgins and E. P. H. Martin, Def’ts.
    
      (New York Common Pleas, General Term,
    
    
      Filed December 2, 1889.)
    
    ¡Recognizance—¡Fobeeiture, when vacated.
    The defendant H. appeared twice for trial for assault, but complainant did not appear, although subpoenaed. When the cause was called on a later day neither the defendant nor his surety appeared, not having been notified, nor did complainant appear.' The recognizance was forfeited.. The surety thereafter produced H, who was discharged, the complainant not appearing. Held, that the judgment on the recognizance should be discharged.
    Application to vacate judgment on forfeited recognizance.
    
      E. F. Hassey, for def’ts; J. R. Fellows, dist. att’y, for pl'ffs.
   Per Curiam.

It appears in this case that the prisoner was produced by his surety on the day when the cause was set down for trial, February 20, 1889, and appeared there with all his witnesses, but the complainant failed to appear although duly subpoenaed ; that the cause was adjourned to the 27th of February,. 1889, when the prisoner was again produced by his surety and attended with his witnesses in court and the complainant failed to-appear, although he had been personally served with a subceena and notified to come to court on that day; an attachment was then ordered against the complainant and the prisoner, his surety and witnesses departed; that on the 4th day of March the cause was again called although the prisoner and his surety had no notice of its being'set down for that day, and failed to appear, but the complainant also failed to appear at that time, he not having been subpoenaed, because the officer who attempted to serve him could not find him at his residence at that time. The recognizance was forfeited on said last named day. On subsequently learning that it had been forfeited, the surety produced the prisoner. and surrendered him on June 3,1889 ; his cause was set down for trial the next day, Ms witnesses attended at that time, the complainant did not appear, the officer not being able to serve Mm with a, subpoena, and the prisoner was then discharged.

If the affidavit of the subpoena server is to be taken as sufficient evidence that the complainant was notified to appear in court, then we must assume that the reason why the cause was never tried was because of his neglect to prosecute. It does not appear that any obstruction to justice was caused by any act of the prisoner or his surety. The prosecution was for assault and battery.

I think the judgment on the recognizance should be discharged.

Larremore, Ch. J. and Daly, J., concur.

Van Hoesen, J.—I do not concur in this.  