The People of the State of New York, Plaintiffs, against Jacob Grossman et al., Defendants

The People of the State of New York, Plaintiffs, against Jacob Grossman et al., Defendants. (Decided June 3d, 1889.) On an application to vacate a judgment on a forfeited recognizance taken in a prosecution for' assault, and battery, the surety produced the record of the court in such proceeding, showing that the complainant therein appeared and acknowledged satisfaction for the assault and.battery, and that, on his request, defendant was discharged, and also an affidavit of' his attorney that the complainant, after diligent search, could not be found. Held, that the application should be granted. Motion to vacate a judgment entered upon a forfeited recognizance. The facts are stated in the opinion. David Hirshfield, for the motion. John R. Fellows, District Attorney, opposed. [MAJORITY — Per Curiam.] Per Curiam. A motion to vacate this judgment was made at the General Term in March last, and was denied upon the grounds stated in a memorandum of the court. The motion is now renewed upon fuller papers. The memorandum made by the court upon the first application indicated that there was not sufficient proof that.the complainant appeared before the Court of Special Sessions, and refused to prosecute the defendant Grossman for the assault and battery with which he bad charged him. The record of the court that the complainant declined to prosecute and an affidavit of the complainant, with a due identification, would present the most satisfactory evidence of this fact. It appears from the papers now before us that the applicant has endeavored to present this evidence. He has produced the record of the court showing that the complainant appeared and acknowledged satisfaction for the injury received, and requested the discharge of the defendant, who was then discharged. He has also shown by the affidavit of his attorney, that diligent search has been made for the complainant for the purpose of obtaining from him an affidavit, and that he cannot be found. We think that, under the circumstances, the surety is entitled to an order remitting the forfeiture and vacating the judgment entered on the recognizance. Application granted.