
    The People, Plff’s, v. James Hassan and Joseph Finnerty, Def’ts.
    
      (New York Common Pleas, General Term,
    
    
      Filed December 5, 1892.)
    
    Recognizance—Forfeiture.
    Where a principal has been surrendered by his sureties after forfeiture of the recognizance and been convicted, but has appealed and is out on bail pending such-appeal, the judgment entered on the forfeiture will not be vacated except "upon proof that there was no lack of evidence through the delay caused by the default.
    Application to vacate judgment entered upon forfeiture of recognizance.
    
      J. H. Sliner, for motion; L. Hanneman (Delancey Nicoll, of counsel), opposed.
   Daly, Ch. J.

The principal was surrendered by his bail, after forfeiture, and has been tried and convicted, but has appealed and is out on bail pending the hearing of such appeal. Under such circumstances, we must have proof that the People have lost no rights by the failure to originally produce the prisoner for trial. The appeal may be upon questions of fact, and we must know that there was no lack of evidence through the delay caused by the default There is not even the ordinary certificate of the district attorney to that effect, much less the proofs required in People v. Carey and Marslers, 5 Daly, 533, to which we refer the petitioner’s counsel.

Application denied, with leave to renew upon further proofs.

Bischoff and Pryor, JJ., concur.  