
    The People, Pl’ffs, v. Samuel Samuels and Julius Israels, Def’ts.
    
      (New York Common Pleas, General Term,
    
    
      Filed December 2, 1889.)
    
    ¡Recognizance—Forfeiture—Vacation of.
    Where a prisoner is surrendered by his sureties after forfeiture of his recognizance, and acquitted on failure of complainant to appear the court will require evidence that the prosecutor and his witnesses had notice of the subsequent arraignment before vacating -the judgment on the forfeited recognizance, and the certificate of the district attorney that the people have lost no rights is not sufficient.
    Motion to vacate judgment on forfeited recognizance.
    
      P. L. Crate, Jr., for motion; J. P. Fellows, district attorney, opposed.
   Per Curiam.

The prisoner was arraigned for misdemeanor, to wit: assault in the third degree, on Jacob Levermann.

He was held to bail in the sum of $300, called for trial on January 31, 1889, failed to appear and his bond was forfeited, judgment being entered on May 16, 1889. No excuse for his failure to appear is shown. On May 29, 1889, the surety produced the prisoner, the case was called and the complainant failed to appear and defendant was fully and finally discharged. The petition and the certificate of the district attorney state that the people have lost no rights by reason of the prisoner’s failing to appear on the date first set for his trial. The record of the general sessions states that the complainant cannot be found.

In the case of The People v. Carey, 5 Daly, 533, it was held that the certificate of the district attorney that the prosecution has not suffered by the failure of the prisoner to appear on the day first set for his trial is not sufficient to warrant the court in discharging the judgment on the forfeited recognizance, but that the court will require evidence that the prosecutor or the witnesses for the people bad notice of the subsequent arraignment, and the proceedings in court when the prisoner was acquitted A copy of the evidence upon which the indictment was found must be produced, and the principal witnesses for the people, or the complainant should be examined as to whether they were subpoenaed to appear in court when the prisoner was arraigned.

It must appear fully that sufficient effort was made to find the complainant, with full particulars as to his last known place of residence, and the diligence used to bring him into court.

Application denied, with leave to renew on further proofs.

Larremore, Oh. J., Daly and Yam Hoesen, JJ., concur.  