
    In the Matter of the Application of Angelo Pellegrino, Respondent, for the Remission of Part of the Forfeiture of the Undertaking of Bail Recorded against Him and Docketed in the Office of the Clerk of the County of Kings on the 30th Day of January, 1912. The People of the State of New York, Appellant.
    Second Department,
    September 10, 1912.
    Bail — abatement of sum due from surety.
    The court has power to abate the amount due from a surety who has given a bond for the appearance of one charged with crime although the criminal is at large.
    But the court should not abate the sum due where the surety has failed to protect himself by .due custody of the offender, and the debt, so far as appears, would have, been voluntarily discharged;
    Hirschberg and Woodward, JJ., dissented.
    Appeal by the People of the. State of New York from, part of an order of the County Court of. Kings county, entered in the office of the clerk of said county on the llth day of April, 1912, remitting in part the forfeiture, named in a bad. bond.
    
      Hersey Egginton, Assistant District Attorney [James C. Cropsey, District Attorney, and Harry G. Anderson, Assistant District Attorney, with him on the brief], for the. appellant.
    
      Peter P. Smith, for the respondent.
   Thomas, J.:

The court, after judgment of conviction affirmed' and the failure of the surety on the bond for the appearance of the defendant to comply therewith, forfeited the bond, and judgment-in the sum of $10,000 was entered, which as against the' surety the court ordered canceled upon the payment within twenty days of the sum of $6,000. The surety used diligence to effect the discovery and surrender of the fugitive defendant. The surety is amply able to pay the judgment. It is urged that the court has not the power to abate in part the debt while the defendant in the criminal action is at large. There is no such limitation upon its power expressed in the statute (Code Grim. Proc. § 591), but the present facts furnish no occasion for its exercise. The debt is due, payable, collectible, and, so far as appears, would have been voluntarily discharged. The surety would suffer by any considerable payment, as his property is the product of industry. But he contracted the obligation without constraint on the part of the obligee in the bond, and has failed to protect himself by due custody of the offender, and the court should not modify the hardship of just payment by abating from the sum due upon any grounds that appear.

The order should be reversed and the motion denied, without costs.

Burr and Rich, JJ., concurred; Hirschberg and Woodward, JJ., dissented.

Order of the County Court of Kings county reversed and motion denied, without costs.  