#### PEOPLE v. YOUNG.

(Supreme Court, General Term, Fifth Department.

December 28, 1895.)

1. Appeal—Order op Court op Sessions—Special Proceeding.

An order in relation to the remission of the forfeiture of a bail bond, though made in the court of sessions, which has only criminal jurisdiction, is within Code Civ. Proc. § 1357, allowing appeals in civil actions and proceedings, it being an order in a special proceeding of which that court is given jurisdiction.

2. Bail—Remission op Forfeiture—Discretion of Court.

Code Cr. Proc. § 597, providing that after the forfeiture of a bail bond the court “may remit the forfeiture, or any part thereof, upon such terms as are just,” confers a discretionary power on the court, and its action will not be reviewed on appeal unless such discretion has been abused.

3. Same—Expense of Recapture.

It is not an abuse of discretion for a court to refuse to remit so much of a judgment on a forfeited bail bond as has been expended by the county in the recapture and extradition of the prisoner.

Appeal from court of sessions, Monroe county.

Charles Young was indicted for assault in the first degree. Pending the indictment he left the state, and the bond given by him, with Charles Rieger and Elizabeth Rieger as sureties, was forfeited. From an order denying a motion for remission of the forfeiture, the sureties appeal.

Affirmed.

Argued before LEWIS, BRADLEY, and ADAMS, JJ.

Abraham Benedict, for appellants.

Fred C. Hanford, Asst. Dist. Atty., for the People.

BRADLEY, J.

The defendant Young was arrested on the charge of assault in the first degree, and the appellants became his bail, in the sum of $2,500, for, his appearance to answer to an indictment, if it should be found by the grand jury. They presented one against the defendant for assault in the first degree. In the meantime, Young had left the country, and gone to England. With a view to his extradition, a requisition and warrant of the executive of the United States were obtained, and the sheriff of Monroe county sent his deputy to England after Young. He remained there during the pendency of a prosecution in that country against the defendant, which resulted in conviction and imprisonment. Thereupon the deputy returned to this country. The bill presented by the sheriff to the board of supervisors for the service was $1,159.90, of which the sum of $989.90 was audited by the board, and put into the tax levy. Shortly prior to the expiration of the term of imprisonment for which Young was sentenced there, the deputy of the successor in office of the sheriff before mentioned went to England; was there when Young was discharged from such imprisonment; and, pursuant to the extradition treaty between the two countries, he was taken into custody, and brought from there to the county of Monroe. The amount of the sheriff’s bill for this service, as made out for presentation to the board, was $1,019.19. It does not appear that any action of the board of su*548pervisors had been taken on this bill at the time the proofs in this-proceeding were prepared, in April, 1894. In October, 1893, judgment was recovered against the appellants, upon their undertaking as bail, for the sum of $2,518.30. The excess of that sum over $2,039 was remitted by the order appealed from. The main purpose of the statutory requirement of bail, which, when furnished, relieves the person charged with crime from custody, is to have-such. assurance as it may furnish of appearance of the principal to answer to indictment, and his presence for trial, and as indemnity for the consequences of his failure to submit himself to the-jurisdiction of the court. His default gives the right of action upon the undertaking of bail, to recover the amount of it. This-was the consequence of the default of the principal in the case in question. By their motion, the sureties of Young sought the discretion of the court of sessions for relief pro tanto from the judgment recovered against them. The statute on the subject provides-that:

> “After the forfeiture of the undertaking or deposit, as provided in this article, the court directing the forfeiture, the county court of the county * * may remit the forfeiture or any part thereof, upon such terms as-are just.” Code Gr. Proe. § 597. “The application must be upon at least five days’ notice to the district attorney * * and can be granted only upon payment of the costs and expenses incurred in the proceedings for the enforcement of the forfeiture.” Id. § 598.

The forfeiture was directed by the court of sessions of Monroe county, and therefore the motion was properly made in that court for the remission. The right of appeal in criminal cases is dependent upon the statute, as are also appeals from orders. People v. Thompson, 41 N. Y. 1. If the order in question should be deemed to have been made in a criminal action, the appeal would have the support of no statute. The court of -sessions is a court of criminal jurisdiction. It is nevertheless a court of record, of original jurisdiction. And the statute provides that an appeal may betaken to the supreme court from an order, affecting a substantial right, made by a court of record, possessing original jurisdiction, in a special proceeding instituted in that court pursuant to a special statutory provision. Code Civ. Proc. § 1357. The order was made in a special proceeding, and, although made in the court of sessions, it may, in view of the purpose of the motion, be deemed to have been a civil, as distinguished from a criminal, proceeding, and therefore treated as within the provision of the Code of Civil Procedure entitled “An act relating to county officers of justice and civil proceedings.” It was optional with the appellants to make-the motion either in the court of sessions or the county court.

Assuming, therefore, that the order affects a substantial right, it is appealable. The difficulty encountered by the appellants is in the fact of the discretion of that court in determining the matter of the application on which the order was made. The bills-for charges and expenses in recapturing Young, and bringing him into the jurisdiction of the court for the purpose of his trial for the offense charged, may seem large and somewhat unreasonable, *549as they were made to appear upon the application for relief of the appellants. Yet the motion made by them was, in some sense, one for favor; and the court was justified in requiring that the county of Monroe should, so far as the obligation of the sureties would permit, be indemnified against loss arising from the expenses with which it was or might be chargeable in consequence of the default of their principal. The charges for the amounts mentioned were made by the sheriffs. Those of one of those officers had been acted upon, considered, and audited by the board of supervisors for a sum somewhat less in amount than that for which the bill was presented by him. The other bill, on the same basis, very likely became the subject of consideration, and was audited for some amount, before the order appealed from was made; and, as between the board of supervisors and the sheriffs, it does not appear whether or not the bills were challenged otherwise than by the investigation given to them by the board. In this and in the audit the board of supervisors are deemed to have acted judicially. It may therefore be assumed that the taxable property of the county of Monroe became chargeable with the amount of such bills audited and allowed by the board of supervisors. So far as appears, the order in question remits the amount of the recovery in excess of that found necessary to indemnify the county for the expenses charged in taxes upon the assessment rolls as perfected by such board. The provision of the statute that the court referred to “may remit the forfeiture or any part thereof upon such terms as are just,” confers a discretionary power upon it. People v. Spear, 1 N. Y. Cr. R. 538. And the general rule is that one court will not review the discretion of another court, unless authorized by statute to do so, or unless such discretionary power has been so abused by the latter court in such manner as to constitute error in law. Wavel v. Wiles, 24 N. Y. 635; Reilley v. Canal Co., 102 N. Y. 383, 7 N. E. 427; Tanner v. Marsh, 53 Barb. 438; Thomas v. Keeler, 52 Hun, 318, 5 N. Y. Supp. 359; Tucker v. Pfau, 70 Hun, 59, 23 N. Y. Supp. 953. The appellants, by their application to the court of sessions, sought its favor and discretion for relief; and by requiring full indemnity to the county for the expenses incurred in recapturing Young, with which it was, through its constituted authorities, charged, it cannot well be said that the discretion of the court was abused by the order there made.

It is, however, urged on the part of the appellants that the expense of recapturing Young was not a county charge, but that such expense is primarily that of the federal government. It is true that, as between the United States and Great Britain, the expenses of the extradition pursuant to the treaty are to be borne by the former; but the relation in that respect between the two governments does not control as to the primary or ultimate duty or obligation, as between the federal government and the county in which the crime is alleged to have been committed by the extradited person. The expenses of the recapture of Young were incurred by the officers of Monroe county. Those officers cannot seek indemnity elsewhere, and it was within the power of the court to treat *550the expenses as incurred in behalf of the county, and they were properly the subject of consideration by the court upon the motion made for remission of the forfeiture. "

These views lead to the conclusion that the order must be affirmed. All concur.