RICH, J.:

This appeal is by the People from an order of a county judge remitting the forfeiture of a bail undertaking from $1,500 to $1,000. The facts are undisputed. On January 2, 1910, Antonio Montelione, Erasino Rubino and Pietro Compisiano were arrested, charged with the crime of extortion, and held to await the action of the grand jury. On January 28, 1910, they were jointly indicted, charged with that crime. On March fifteenth and sixteenth following, Montelione was tried, found guilty as charged in the indictment and sentenced to a term of years in State prison. The judgment of conviction was unanimously affirmed ( People v. Montelione, 148 App. Div. 928), and Rubino and Compisiano were committed to the custody of the warden of the city prison in default of $10,000 bail. On January twenty-second Montelione appealed to the Court of Appeals. The bail of Rubino and Compisiano was subsequently reduced to $1,500, and on March 4, 1912, the respondents executed a bond in the penalty of $1,500, conditioned "that the above-named Erasino Rubino shall appear and answer the indictment 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, then will pay to the People of the State of New York, the sum of $1,500.00." On March nineteenth following the Court of Appeals unanimously affirmed the conviction of Montelione. ( 205 N.Y. 534. ) On March twenty-eighth Rubino was called for trial in the County Court of Kings county. He did not appear and his undertaking was, on March twenty-ninth, declared forfeited. On April first following judgment for $1,500 was entered against the respondents, and execution issued under which the sheriff levied upon property owned by the respondent Heit, who subsequently was successful in obtaining the order from which this appeal is taken. Rubino is still at large, and his whereabouts are unknown.

I have been unable to find a reported case where a forfeiture has been remitted where the accused was not in custody and produced, but assuming without deciding that the discretion vested in the court by sections 597 and 598 of the Code of Criminal Procedure may be properly exercised although the accused is not surrendered and is still at large, such discretion should not be exercised except in cases of extreme hardship, as Judge VANN said in People v. Spear (1 N.Y. Cr. Rep. 538), such as "will cause destitution to a family, deprive children of support and education, or creditors of their just debts," and not for reasons founded only on sympathy or sentiment, and facts showing such conditions as the positive result of enforcement of the judgment must be presented to the court to which the application is made, before it is warranted in exercising the discretion vested in it by reducing the forfeiture.

In the case at bar the only proof before the court was the statement contained in the affidavit of the respondent Heit in the following sentence, viz.: "That the amount of bail fixed and the judgment entered thereon is excessive; that deponent can ill afford to lose the amount adjudged in said forfeiture."

The order appealed from is reversed.

BURR, THOMAS and WOODWARD, JJ., concurred; JENKS, P.J., not voting.

Order of the County Court of Kings county reversed.