
    SUPREME COURT—APP. DIV.—SECOND DEPT.,
    July 25, 1912.
    THE PEOPLE v. ROSA HEIT AND SARAH WANZWAG.
    (152 App. Div. 179.)
    Bail—Remission of forfeiture.
    The discretion, vested in the court by sections 597 and 598 of the Code of Criminal Procedure, to remit the whole or part of a forfeiture should not be exercised except in case of extreme hardship. The fact that the surety can ill afford to lose the amount is not a sufficient ground.
    Appeal by the plaintiff, The People of the State of New York, from an order of the County Court of Kings county, entered in the office of the clerk of said court on the 6th day of May, 1912, in so far as said order remits any part of the forfeiture of the undertaking herein.
    
      Hersey Egginton, Assistant District Attorney (James G. Gropsey, District Attorney^ and Harry G. Anderson, Assistant District Attorney, with him on the brief), for the appellant.
    
      Rufus L. Perry, for the respondents.
   Rich, J.:

This,appeal is by the People from an order of a county judge remitting the forfeiture of a bail undertaking from $1,500 to $1,000. The facts are undisputed. On January 2, 1910', Antonio Montelione, Erasino Rubino and Pietro Compisiano wej*e arrested, charged with the crime of extortion, and held to await the action of the grand jury. On January 28, 1910', they were jointly indicted, charged with that crime. On March 15th and 16th following, Montelione was tried, found guilty as charged in the indictment and sentenced to a term of years in State prison. The judgment of conviction was unanimously affirmed (People v. Montelione, 148 App. Div. 928), and Eubino and Oompisiano were committed to the custody of the warden of the city prison in default of $10,000 bail. On January 22d Montelione appealed to the Court of Appeals. The bail of Eu~ bino and Oompisiano was subsequently reduced to $1,500, and on March 4, 1912, the respondents executed a bond in the penalty of $1,500, conditioned that the above-named Erasino Eubino shall appear and answer the indictment above mentioned, in whatever court it may be prosecuted and shall at all times render himself amenable to the order and process of the court and if convicted shall appear for judgment and render himself in execution thereof, or if he fail to perform either of these conditions, then will pay to the People of the State of New York, the sum of $1,500.00.” On March 19th following the Court of Appeals unanimously affirmed the conviction of Montelione. (205 N. Y. 534.) On March 28th Eubino was called for trial in the County Court of Kings county. He did not appear and his undertaking was, on March 29th, declared forfeited. On April 1st following judgment for $1,500' was entered against the respondents, and execution issued under which the sheriff levied upon property owned by the respondent Heit, who subsequently was successful in obtaining the order from which this appeal is taken. Eubino is still at large and his whereabouts are unknown.

I have been unable to find a reported case where a forfeiture has been remitted where the accused was not in custody and produced, but assuming without deciding that the discretion vested in the court by sections 597 and 598 of the Code of Criminal Procedure may be properly exercised although the accused is not surrendered and is still at large, such discretion should not be exercised except in cas.es of extreme hardship, as Judge Vann said in People v. Spear (1 N. Y. Cr. Rep. 538), such as “ will cause destitution to a family, deprive children of support and education, or creditors of their just debts,” and not for reasons founded only on sympathy or sentiment, and facts showing such conditions as the positive result of enforcement of the judgment must be presented to the court to which the application is made, before it is warranted in exercising the discretion vested in it by reducing the forfeiture.

In the case at bar the only proof before the court was the statement contained in the affidavit of the respondent Heit in the following sentence, viz.: “ That the amount of bail fixed and the judgment entered thereon is excessive; that deponent can ill afford to lose the amount adjudged in said forfeiture.”

The order appealed from is reversed.

Burr, Thomas and Woodward, JJ., concurred; Jerks, P. J., not voting.

Order of the County 'Court of Kings county reversed.  