Opinion
November 9, 1954.
Present — Dore, J.P., Cohn, Breitel, Bastow and Botein, JJ. [ 205 Misc. 5.]
Respondent surety executed a bail bond in behalf of its principal charged with a crime. He failed to appear for pleading to the indictment and, although it was reported that he was in the United States Army, the court directed forfeiture of the bond. Six months after judgment entered on the forfeiture was satisfied, respondent surety, pursuant to the provisions of section 597 of the Code of Criminal Procedure, applied to Special Term for remission of the forfeiture. The court, in granting the application, held that the provisions of the Federal Soldiers' and Sailors' Civil Relief Act of 1940 (U.S. Code, tit. 50, Appendix, § 513, subd. [3]) were satisfied by a showing that the principal had been inducted into military service eight days prior to the date set for pleading. These provisions require more than that. The surety must also demonstrate that it made an unsuccessful effort to secure the person of the principal from the military authorities ( Ex Parte Moore, 244 Ala. 28; State v. Benedict, 234 Iowa 1178.) Order unanimously reversed, with $20 costs and disbursements to the appellant, and the motion to remit the bail bond forfeiture denied.