The People of the State of New York, Respondents, v. James Scott, Impleaded, etc., Appellant

The People of the State of New York, Respondents, v. James Scott, Impleaded, etc., Appellant. Dufendant, R., having been arrested on a charge of abandoning his family, gave, with defendant, S., as his surety, a recognizance for his appearance before the justice on a day specified, " and from time to time as directed by the said justice.” In an action upon the recognizance, it appeared that, after several adjournments, R. did not appear upon two days to which the proceedings were adjourned, and the justice ordered the recognizance forfeited. Held, that the evidence did not show a breach of the condition; that R. was not required thereby to appear upon any and every adjourned day, but only when directed hy the justice; that there could be no continuance of the liability after the day named, if it was capable of being continued at all, but by a proper order of the justice directing the principal to appear at a specified time; that no such order could be implied from the mere adjournment, and in the absence of proof thereof defendants were not liable. (Submitted September 20, 1876; decided October 3, 1876.) This action was brought to recover the penalty of a recognizance or bail bond. Defendant Rowe was arrested upon a justice’s warrant on the charge of abandoning his family. The recognizance in suit was conditioned for his appearance before the justice July 3, 1874, at 9-| o’clock a. m., “ and from time to time as directed by- said justice.” The hearing was adjourned from time to time, entry thereof only being made upon the recognizance. Upon August 12, 1874, and September 8, 1874, adjourned days, Rowe did not appear, and, upon the last day, the justice indorsed upon the recognizance as follows: “ The within-named Joseph E. Rowe called in open court and failed to appear. Ordered, that the within bond be, and the same hereby is, forfeited, and direct that the same be prosecuted according to law.” It did not appear that any court was held or proceedings had on July 3, 1874, the day named in the recognizance, or that on that day, or any of the adjourned days, the justice made any order or gave any directions, verbal or otherwise, for the appearance of Rowe. Held, as above. H. O. Place for the appellants. Jerry A. Wernburgh for the respondents. [MAJORITY — Allen, J.,] Allen, J., reads for reversal and new trial. All concur. Judgment reversed.