
    The Mohawk and Hudson River Humane Society, Plaintiff, v. County of Saratoga, Defendant.
    (Supreme Court, Saratoga Special Term,
    September, 1914.)
    Indictment — for attempted rape of child under fourteen — forfeiture of cash hail upon non-appearance of defendant for trial — procuring evidence by incorporated society — Penal Law, § 491.
    Where one indicted for attempted rape of a child under fourteen years of age furnished cash bail which, upon the non-appearance of defendant for trial, was duly forfeited, the amount of the forfeit is not recoverable under section 491 of the Penal Law by an incorporated society for the prevention of cruelty to children which by its agents assisted in procuring evidence which resulted in the indictment:
    Action under section 491 of the Penal Law to recover forfeited cash bail.
    Slade, Harrington & Goldsmith (Irving I. Goldsmith, of counsel), for plaintiff.
    J. W. Atkinson, for defendant.
   Kellogg, H. T., J.

The plaintiff by its agents assisted in procuring evidence which resulted in the indictment of one Harry Martin for the crime of attempted rape upon a child under the age of fourteen. Cash bail was furnished and, upon the non-appearance of the defendant at the trial, was duly forfeited to the county of Saratoga. This action is brought to recover the amount of the forfeit, upon the theory that the prosecution was instituted by the plaintiff and is, therefore, recoverable under section 491 of the Penal Law. That section reads as follows:

Fines to be paid to society for prevention of cruelty to children.—All fines, penalties and forfeitures imposed or collected for a violation of the provisions of this chapter, or of any act relating to, or affecting children, now in force or hereafter passed, must be paid on demand to the incorporated society for the prevention of cruelty to children in every case where the prosecution shall be instituted or conducted .by such a society.”

The forfeiture was declared for non-appearance upon trial by a defendant. It was not “ imposed.” Still less was it ‘ ‘ imposed ’ ’ for a violation of a chapter of the Penal Law or any act affecting children. There has been no violation unless there has been a conviction. Even though such were not the case, still the forfeiture was not declared for a violation proven or unproven, but for non-appearance only. If the defendant had been recaptured, tried and by an acquittal proven guiltless of a violation, the forfeited bail might not have been remitted. Again, the forfeiture was not declared by reason of the Penal Law or acts affecting children, but by authority of the provisions of the Criminal Code.

For these reasons the complaint should be dismissed.

Complaint dismissed.  