Opinion
September 10, 1912.
Hersey Egginton, Assistant District Attorney [ James C. Cropsey, District Attorney, and Harry G. Anderson, Assistant District Attorney, with him on the brief], for the appellant.
Peter P. Smith, for the respondent.
The court, after judgment of conviction affirmed and the failure of the surety on the bond for the appearance of the defendant to comply therewith, forfeited the bond, and judgment in the sum of $10,000 was entered, which as against the surety the court ordered canceled upon the payment within twenty days of the sum of $6,000. The surety used diligence to effect the discovery and surrender of the fugitive defendant. The surety is amply able to pay the judgment. It is urged that the court has not the power to abate in part the debt while the defendant in the criminal action is at large. There is no such limitation upon its power expressed in the statute (Code Crim. Proc. § 597), but the present facts furnish no occasion for its exercise. The debt is due, payable, collectible, and, so far as appears, would have been voluntarily discharged. The surety would suffer by any considerable payment, as his property is the product of industry. But he contracted the obligation without constraint on the part of the obligee in the bond, and has failed to protect himself by due custody of the offender, and the court should not modify the hardship of just payment by abating from the sum due upon any grounds that appear.
The order should be reversed and the motion denied, without costs.
BURR and RICH, JJ., concurred; HIRSCHBERG and WOODWARD, JJ., dissented.
Order of the County Court of Kings county reversed and motion denied, without costs.