
    The People of the State of New York, Pl’ff, v. Jacob Grossman, Principal and Max Eichner, Surety, Def’ts.
    
      (New York Common Pleas, General Term,
    
    
      Filed June 3, 1889.)
    
    Bad>-When judgment on bond should be vacated.
    A judgment was entered in favor of plaintiff against the defendants, principal and surety, in a forfeited recognizance. The surety applies to vacate the judgment and produces the record of the court of special sessions, which showed that the complainant appeared before that court and acknowledged satisfaction for the injury he had received from the assault of the defendant Grossman, and requested his discharge, which the court granted; the surety also submitted the affidavit of his attorney that he had made diligent search for the complainant for the purpose of obtaining liis . affidavit as to the above facts, but had not been been able to find him. Held, that under these circumstances, the surety was entitled to an order vacating the judgment entered on the recognizance.
    Application to vacate a judgment entered upon a forfeited recognizance.
   Per Curiam.

A motion to vacate this judgment was made at the general term in March last, and was denied upon the grounds stated in a memorandum of the court.

The motion is now renewed upon fuller papers.

The memorandum made by the court upon the first application indicated that there was not sufficient proof that the complainant appeared before the court of special sessions, and refused to prosecute the defendant Grossman for the assault and battery with which he had charged him.

The record of the court that the complainant declined to prosecute, and an affidavit of the complainant, with a due identification, would present the most satisfactory evidence of this fact.

It appears from the papers now before us that the applicant has endeavored to present this evidence.

He has produced the record of the court showing that the complainant appeared and acknowledged satisfaction for the injury received and requested the discharge of the defendant, who was then discharged. He has also shown by the affidavit of his attorney that diligent search has been made for the complainant for the purpose of obtaining from him an affidavit, and that he cannot be found. We think that under the circumstances the surety is entitled to an order remitting the forfeiture and vacating the judgment entered on the recognizance.  