Maria G. Pernetti, Appellant, v. The People of the State of New York, Respondent

Maria G. Pernetti, Appellant, v. The People of the State of New York, Respondent. Pernetti v. People, 99 App. Div. 391, affirmed. (Argued April 12, 1905; decided May 2, 1905.) Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 10, 1905, which affirmed an order of Special Term denying a motion to vacate and set aside a judgment entered upon a forfeited recognizance. The question certified was as to whether or not the plaintiff was liable upon, the bond hereinafter set forth under the following facts: One Benedetto Madonia was killed on April 14, 1903, and Messina Genova was, with others, arrested for this crime and admitted to bail, the appellant Maria G. Pernetti having executed the undertaking in the sum of $1,500. Subsequently the charge of homicide against Genova was dismissed by the grand jury, but on the same day it found an indictment for perjury against him. On the same day the appellant Pernetti was notified to produce the said Genova on the next day in the Court of General Sessions of the county of New York to plead to an indictment for perjury, but the said Pernetti did not produce the said Genova, nor did said Genova appear. An adjournment was thereupon had and on the adjourned day the said Genova not appearing the bail bond was forfeited. The undertaking was given pursuant to section 568 of the Code of Criminal Procedure in form and language as follows: “ State of New York, ~) “ Borough og Manhattan ~) “ County of New York ~) “ An order having been made on the 9th day of May, 1903, by the Hon. Gustave Seholer, Coroner, that Messina Genova be held to answer upon a charge of homicide, upon which he has been duly admitted to bail in the sum of fifteen hundred ($1,500) dollars. “ We, Messina Genova, defendant, residing at No. 329 East One Hundred and Sixth street, and Maria G. Pernetti, residing at 400 East One Hundred and Tenth street, in the Borough of Manhattan, surety, herein jointly and severally, undertake that the above-named Messina Genova shall appear and answer the charge above mentioned in whatever Court it may be prosecuted, and shall at all times render himself amenable to the orders and process of the Court; and if convicted shall appear for judgment and render himself in execution thereof; or if he fail to perform either of these conditions that we Will pay to the People of the State of New York the sum of fifteen hundred ($1,500) dollars.” Louis Jersawitz and Antonio O. Astarita for appellant. William Travers Jerome, District Attorney (Robert 0. Taylor of counsel), for respondent. [MAJORITY] Order affirmed, with costs, and question certified answered in the affirmative ; no opinion. Concur : Cullen, Ch. J., Bartlett, Haight and Werner, JJ. Dissenting : O’Brien and Vann, JJ. Absent: Gray,'J.