§ 586. Deposit, when and how made. The defendant, at any time after an order admitting him to bail, instead of giving bail, or a witness committed in default of an undertaking to appear and testify, instead of entering into such an undertaking, may deposit with the county treasurer of the county in which he is held to answer or appear, the sum mentioned in the order or commitment; and upon delivering to the officer, in whose custody he is, a certificate of the deposit, he must be discharged from custody. [Amended 1892, ch. 220; in effect April 5, 1892. See Egan v. Stevens, 39 Hun, 314; People v. Laidlaw, 102 N. Y. 588.

$587. May be made after bail given, and before forfeiture; and in such case bail discharged.-If the defendant have given bail, he may, at any time before the forfeiture of the undertaking, in like manner deposit the sum mentioned in the undertaking; and upon the deposit being made the bail is exonerated.

See People v. Laidlaw, 102 N. Y. 591.

8588. Bail may be given after deposit; and in such case money deposited to be refunded. If money be depos ited, as provided in the last section, bail may be given in the same manner as if it had been originally given upon the order for admission to bail, at any time before the forfeiture of the deposit. The court or magistrate before whom the bail is taken must thereupon direct, in the order of allowance, that the money deposited be refunded by the county treasurer to the defendant; and it must be refunded accordingly.

See People v. Laidlaw, 102 N. Y. 588.

589. Deposit to be applied to payment of judgment of fine, and surplus to be refunded. When money has been deposited, if it remain on deposit and unforfeited at the time of a judgment for the payment of a fine, the county treasurer must, under direction of the court, apply the money in satisfaction thereof; and after satisfying the fine. must refund the surplus, if any, to the defendant.

See People v. Laidlaw, 102 N. Y. 592.

ARTICLE VI.

SURRENDER OF THE DEFENDANT.

SECTION 590. Surrender, by whom, when and how made.

591. By whom, when and where defendant may be arrested for the purpose of a surrender.

592. On surrender before forfeiture, money deposited to be refunded;

order therefor, how obtained.

590. Surrender, by whom, when and how made.-At any time before the forfeiture of the undertaking, any surety may surrender the defendant in his exoneration, or the defendant may surrender himself, to the officer to whose custody he was committed, at the time of giving bail, in the following manner:

1. A certified copy of the undertaking of the bail must be delivered to the officer, who must detain the defendant in his custody thereon, as upon a commitment, and by a certificate in writing acknowledge the surrender;

2. Upon the undertaking and the certificate of the officer, the court in which the indictment or the appeal, as the case may be, is pending, may, upon a notice of five days to the district attor ney of the county, with a copy of the undertaking and certifi cate, order that the bail be exonerated; and on filing the order and the papers used on the application, the bail is exonerated accordingly.

See People v. Laidlaw, 102 N. Y. 591.

591. By whom, when and where, defendant may be arrested for the purpose of a surrender. - For the purpose of surrendering the defendant, any surety, at any time before he is finally charged, and at any place within the state, may himself arrest him, or by a written authority indorsed on a certified copy of the undertaking, may empower any person of suitable age and discretion to do so.

§ 592. On surrender before forfeiture, money deposited to be refunded. If money have been deposited instead of bail, and the defendant at any time before the forfeiture thereof surrender himself to the officer to whom the commitment was directed, in the manner provided in section five hundred and ninety, the court must order a return of the depost to the defend

ant, upon producing the certificate of the officer showing the surrender, and upon a notice of five days to the district attorney, with a copy of the certificate.

See People v. Laidlaw, 102 N. Y. 591.

ARTICLE VII.

FORFEITURE OF THE UNDERTAKING OF BAIL, OR OF THE DEPOSIT

OF MONEY.

SECTION 598. In what cases, and how ordered.

594. When and how forfeiture may be discharged.

595. Forfeiture of bail, to be enforced by action.

596. Deposit of money, when forfeited; how disposed of.
597. Remission of forfeiture.

598. Application therefor, how made and on what terms granted.

8593. In what cases, and how ordered. If, without sufficient excuse, the defendant neglect to appear for arraignment, or for trial or judgment, or upon any other occasion where his presence in court may be lawfully required, or to surrender himself in execution of the judgment, the court must direct the fact to be entered upon its minutes; and the undertaking of his bail, or the money deposited, instead of bail, as the case may be, is thereupon forfeited.

Bastardy proceedings instituted against the defendant were adjourned from May 28 to June 7. On that day defendant appeared, and the hearing proceeded throughout the day, and were then adjourned by consent to June 26, on which day defendant failed to appear. At the time of the first adjournment a bond with two sureties was given which recited the proceedings and the adjournment to June 7. It was conditioned to be void if the said defendant should personally be and appear before the justices at the time and place aforesaid, and not depart therefrom without the leave of the justices. On the second adjournment, defendant and one of the sureties were present. It was stated by counsel for the two parties, in their presence, that the bond was to be held good. Held, that the sureties were not discharged from liability by the second adjournment. People v. Millhau, 100 N. Y. 273; 4 N. Y. Cr. Rep. 127. But see People v. Swales, 33 Hun, 208.

The court have no power to respite a recognizance to a succeeding term, against the express dissent of the bail. People v. Clary, 17 Wend. 374; People v. Green, 5 Hill, 647.

If a party, bound by a recognizance, be subsequently arrested on a bench

warrant, before a forfeiture, and escape, his bail are discharged. People v. Stager, 10 Wend. 431; People v. Derby, 1 Park. 392; People v. Mack, id. 567. An arrest on a bench warrant after a forfeiture does not release the bail. People v. Annable, 7 Hill, 33.

A recognizance is forfeited, though the defendant appear, if he depart before the conclusion f the rial. People v. McCoy, 39 Barb. 73; People v. Jane, 27

id. 58.

It is no defense to an action on a recognizance for appearance that no indictment was found against the principal at such court. Champlain v. People, 2 N. Y. 82.

A party under recognizance to appear may be called upon on any day during the continuance of the court without notice. People v. Blankman, 17 Wend. 252.

If the defendant be called at any stage of the trial, and fail to appear and answer, his recognizance may be declared forfeited. People v. Petry, 2 Hilt.

523.

There is a breach of the recognizance if the defendant, though corporally present, do not answer when called. People v. Wilgus, 5 Den. 58.

It is a good defense to an action on a recognizance for a person's appearance to answer a criminal charge that he has been arrested and committed to jail in another county. People v. Bartlett, 3 Hill, 570; People v. Haines, 1 Den. 454.

It is a valid excuse for the non-appearance of the principal that he had enlisted as a soldier in the United States, etc. People v. Chusney, 44 Barb. 118; People v. Cook, 30 How. Pr. 110.

When a recognizance is conditioned for the appearance of the defendant on a day certain, and from time to time as directed by the justice, and the pro. ceedings are adjourned at a time when the defendant is not present, there cannot be a forfeiture of the recognizance at a subsequent adjourned day. People v. Scott, 67 N. Y. 585.

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594. When and how forfeiture may be discharged. If, at any time before the final adjournment of the court, the defendant appear and satisfactorily excuse his neglect, the court may direct the forfeiture of the undertaking or deposit to be discharged, upon such terms as are just.

See People v. Coman, 5 Daly, 527; 49 How. Pr. 91.

$595. Forfeiture of bail, to be enforced by action. If the forfeiture be not discharged, as provided in the last section, the district attorney may, at any time after the adjournment of the court, proceed against any surety upon his undertaking. Such proceeding shall be by action only, except in the city and county of New York, where it shall be in the method now prescribed by special statute.

§ 596. Deposit of money when forfeited, how disposed of. — If, by reason of the neglect of the defendant to appear, as provided in section five hundred and ninety-three, money deposited instead of bail is forfeited, and the forfeiture be not discharged or remitted, as provided in sections five hundred and ninety-four and five hundred and ninety-seven, the county treasurer with whom it is deposited may, at any time after th final adjournment of the court, apply the money deposited to the use of the county.

$597. Remission of forfeiture. After the forfeiture of the undertaking or deposit, as provided in this article, the court directing the forfeiture, the county court of the county, or in the city of New York, the supreme court may remit the forfeiture or any part thereof, upon such terms as are just.

In effect, as amended, Jan. 1, 1896; Laws 1895, chap. 880.

A person having forfeited her bail by leaving the county, though afterward returning and giving bail under the indictment found against her since the forfeiture which is nolle pros'd, is not entitled to the return of the money paid on the forfeiture of the bail. People v. Fisher, 8 State Rep. 382; 14 Daly, 278. A judgment on a forfeited recognizance will not be discharged because of the illness of the surety at the time the recognizance was forfeited. People v. Meehan, 14 Daly, 333.

A judgment entered against surety and principal respectively, on a forfeited recognizance, will be canceled on motion, where it appears that subsequent to the forfeiture, the accused person appeared, was tried, and paid the fine im. posed. People v. Boessmeeker (Gen. Term, N. Y. Com. Pleas), 27 Week. Dig. 387.

A judgment entered on a forfeited recognizance taken in the special sessions in a prosecution for assault and battery will be vacated where it is shown that complainant appeared and acknowledged satisfaction for the injury and requested the discharge of defendant. People v. Grossman (Gen. Term, N. Y. Com. Pleas), 5 N. Y. Supp. 446.

To warrant the discharge of a judgment upon a forfeited recognizance, it must be shown to the court that the accused did not escape conviction through the absence of prosecutor and witness. People v. Flegenheiner, 15 State Rep. 376.

8598. Application therefor, how made and on what terms granted. The application must be upon at least five days' notice to the district attorney of the county served with copies of the affidavits and papers on which it is founded, and can be granted only upon payment of the costs and expenses incurred in the proceedings for the enforcement of the forfeiture.