In re Sayles

Truax, J. If the contention of the district attorney is right a motion of this kind could not be made after a district attorney had retired from office, for how can a district attorney, who was not in office at the time that the recognizance was forfeited, certify that the people of the State of Hew York have lost no rights by reason of the failure of a surety to produce a principal in compliance with the terms of a recognizance given by him, and that by reason of the principal’s being produced the people of the State of Hetw York are in as good a position to prosecute said principal as when said failure occurred? A literal interpretation of the statute, section 1482 of chapter 410 of the Laws of 1882, would imply that the certificate was to be issued only by the district attorney who was in office at the time of the forfeiture of the recognizance, and would not authorize a certificate upon information and belief. It is well settled that there is no statute of limitation barring an application of this kind (People v. Nooney, 64 Hun, 171), and yet, if the contention of the district attorney is correct there would be a statute of limitation which would bar the making of the application after the tenure of office of the person who was district attorney at the time the recognizance was forfeited had expired, for, I take it, that the words “ the district attorney ” mean the person who was district attorney at the time the recognizance was forfeited, and does not mean some subsequent district attorney. Moreover, the construction given to section 1482 by the district attorney would in effect make the dis 138 trict attorney the sole judge of whether a judgment entered on a forfeited recognizance should or should not be opened because, if he should refuse to give the certificate required by section. 1482, if the contention of the learned district attorney is correct, the court could not open the judgment. Such cannot be the law. Sections 597 and 598 of the Code of Criminal Procedure would be rendered nugatory if the contention of the district attorney is correct. Section 597 says that the Supreme Court may remit the forfeiture or any part thereof upon such terms as are just, while all that section 598 requires is that an application for a remission of the forfeiture must be made on at least five days’ notice to the district attorney of the county. Row if his certificate is a prerequisite why should he have notice of the application? The district attorney also contends that the above-mentioned sections 597 and 598 are controlled by section 1482 of the Consolidation Act because the latter section was passed later than the former two sections. It is true that said section 1482 was passed subsequently to sections 597 and 598, but section 597 was amended in 1895 (which was subsequent to the passage of said section 1482 of, the Consolidation Act) so that it reads as it now reads, and therefore became a law subsequent to the passage of said section 1482 of the Consolidation Act. Goillotel v. Mayor, 87 N. Y. 441. It now remains to be considered whether the people lost any rights by the escape of the indicted person. The papers show that some time after his escape the. indicted person returned to this county and surrendered himself and was again admitted to bail; that some time after such surrender and admission to bail John R. Fellows, who was then district attorney, moved for the dismissal of the indictment, and then stated in open court that there was not and never had been any evidence justifying the- indictment or trial of said indicted person, and Mr. Delaney Ricoll who was, in the years 1886, ’87 and ’88 an assistant district attorney, and who was thoroughly familiar with the matters out of which this indictment grew, makes an affidavit, which is used on this motion, that the people lost no rights during' his said term of office by reason of the absence from this jurisdiction of the said indicted person. He further certifies that he verily believes that the people lost no rights prior to the surrender of the indicted person which took place on the 7th day of May, 1890. Motion granted.