This appeal is from an order denying a motion to vacate a judgment entered against the defendant McKenna and to set aside an execution issued thereon. •
The facts are undisputed, the parties themselves having entered into a stipulation for the purpose of establishing them. From this stipulation it appears that on the 27th of February, 1901, the defendant Clark, upon a warrant issued upon a deposition charging him with having violated section 344 of the Penal Code, was arrested and on the same day arraigned before th'e magistrate — one of the justices of the Court of Special Sessions of the city of New York — who issued the warrant ;■ when Clark was arraigned he was informed, in accordance with the provisions of section 188 of the Code' of Criminal Procedure, of the charge against him and of his right to the aid of counsel in every stage of the proceeding; Clark demanded that an examination be had of the charge and for that purpose ne requested that the hearing be adjourned to some future day; the magistrate, acting upon this request, adjourned the hearing to and fixed the examination for March seventh, at two o’clock t. m., and *329to insure Clark’s appearance at that time he required him to enter into an undertaking in the penal sum of $2,500, which was given, ■with the defendant McKenna as surety; some time prior to the seventh of March — just when it is not made to appear—some person, who the record does not disclose, then acting as counsel for Clark, requested the magistrate to grant a further adjournment, which he did during the forenoon of March seventh, at just what time does not appear, by directing his then, clerk to make a memorandum upon the papers in the case to the effect that the examination of the defendant was adjourned to March 21, 1901, at eleven o’clock a. m., and the clerk, in pursuance of this direction, made an entry to this effect in his stenographic minutes, and thereafter, but at what time does not appear, he wrote upon an envelope containing the papers in the case the words “ March 21,11 a. m. that when the magistrate directed his clerk to make such memorandum, neither the defendant, his surety, nor any person representing them as attorney or counsel or otherwise, was present, and that such direction for an adjournment was made “ without notice to the defendant personalty and without notice to the surety / ” that on the seventh of March at the time and place originally fixed for the hearing of the examination, McKenna produced Clark for examination, who, with an attorney then representing him, waited for more than one hour “ in the expectation ” that the magistrate would eall the case for examination; that the magistrate did not appear, the case was not called and no disposition whatever was made of it; that on the twenty-first of March, the magistrate, pursuant to the direction given to his clerk, attended, and Clark being called and McKenna, the surety, not producing him, an order was made forfeiting the undertaking and directing that judgment be entered on the undertaking, in accordance with law, and in pursuance of this order, under section I486 of the Consolidation Act (Laws of 1882, chap. 410), continued in force by the Greater Kew York charter (Laws of 1897, chap. 378), a judgment without notice to Clark or to McKenna was entered against them for the amount specified in the undertaking; thereafter McKenna moved to vacate the judgment and set aside the execution issued thereon, so far as the same related to him, which motion was denied, and he has appealed.
I am of the opinion that the motion should have been granted. *330The undertaking, except the formal parts of it, was as follows: “An information having been laid before Wm. Travers Jerome, a Magistrate of the City of New York, charging George Clark, defendant, with the offense of vio. of Sec. 344,. Penal Code, and he having been brought before said magistrate for an examination of said charge, and it having been made to appear to the satisfaction of said Magistrate that said examination should be adjourned to some other day, and the hearing thereof having been adjourned, we, George Clark, defendant, * * * and Patrick McKenna, * * * surety, hereby jointly and severally undertake that the above-named George Clark, defendant, shall personally appear before the said City Magistrate at the said Magistrate’s Court in the City of New York, during the said examination, or that we will pay to the People of the State of New York the sum of twenty-five hundred dollars-.”
The proper construction of the undertaking must be determined' when it is read and construed in connection with the statute (Code Grim. Proc. §§ 191, 192) which authorized the magistrate to take it, and the stipulation relating to and connecting with what occurred when it was given. When it is thus considered, it at once becomes apparent that the obligation, and the only one which McKenna, the surety, assumed, was that Clark would personally appear before the magistrate at the time when, and the place to which the examination had been adjourned, viz., in the Magistrate’s Court on the seventh of March, at two o’clockp. m. Did the surety comply with this obligation ? He did according to the stipulation. He produced Clark at that time and place and Clark was then and there ready to proceed with the examination; he expected that the same would take place, and for that purpose was represented by counsel. Notwithstanding this fact, the surety has been held liable, not because Clark did not appear at that time, but because he did not appear on the twenty-first of March, the time to which the examination had been previously adjourned without notice to either Clark or McKenna, and of which neither of them, so far as appears, had any knowledge whatever. Hpon what principle of law a surety .upon such a state of facts can be held liable, I am unable even to conjecture. The surety had complied both in spirit and letter with his undertaking, and having done this a liability on his part could not be created by any act *331taken by the magistrate, except with his consent, either express or implied.
The learned justice sitting at Special Term denied the motion to set aside the judgment and vacate the execution issued thereon, as appears from his opinion, on the ground that the undertaking required Clark to appear “ not on any certain day, but ‘ during the examination.’ ” But if the undertaking were subject to such construction, which, as it seems to me it is not, in view of the stipulation, it would not aid the People, because it must be read, as already said, in connection with the statute which authorized the magistrate to take it. The only authority which the magistrate had to admit the defendant to bail and to take the undertaking conditioned for his personal appearance at the time to which the proceeding was adjourned, is that derived from the sections of the Criminal Code hereinbefore referred to, and the undertaking in question was only binding upon defendant in so far as it complied with those sections. (People ex rel. Van Aken v. Millham, 100 N. Y. 273; People ex rel. Ritzenthaler v. Higgins, 151 id. 570.) Section 191 provides that the examination of a defendant must be completed at one session, unless the magistrate, for good cause, adjourn it, and that the adjournment cannot be for more than two days at each time, unless by consent or on motion of the defendant, and where an adjournment is had section 192 provides that intermediate the adjournment and examination the defendant may be admitted to bail to insure his appearance at the examination. When the undertaking is thus read in connection with those two sections and also in connection with the stipulation, notwithstanding the fact that no specific time is mentioned for the examination, it at once becomes apparent that it was given for the sole purpose of insuring the defendant’s presence at the time to which the proceeding was adjourned, viz., March seventh at two p. m. Therefore, I am of the opinion that when McKenna produced Clark at that time he complied with the conditions of the undertaking and satisfied the obligation which he had given, and that he could not thereafter be subjected to a liability because the defendant did not appear at some other time or place. The magistrate had no authority, at least so far as the surety on the undertaking was concerned, to adjourn the examination without his knowledge or consent to any *332other time or place than that contemplated at the time and for .which the undertaking was given.
This view is sustained by a recent decision of the Court of Appeals. I refer to the case of People ex rel. Ritzenthaler v. Higgins (supra), which case in principle cannot be distinguished from this. In that case, when the defendant was arraigned before á magistrate, he requested that the hearing of the charge made against him be adjourned until the ninth of March, and pending such hear-ing he gave an undertaking with a surety. On the ninth of March the hearing, without the consent or request of the surety, was adjourned to the twenty-fifth of March, and on that day was further adjourned until the fourth of May, at which time the defendant-failed to appear, and an order was entered directing the prosecution of the undertaking. The undertaking provided that the defendant would personally appear on the ninth of March at a time stated, and “1 at such other time or times to which adjournments may be had for the purpose of the examination and determination therein.’ ” The court on' appeal held that “the condition of.the bond was satisfied by the appearance of the defendant before the court on the 9th of March and had the trial commenced on that day, without being completed, the obligation of the surety would also extend to subsequent adjournments from time to time for the purposes of the trial and determination. But neither the statute nor the terms of the bond contemplate or provide for successive adjournments, from time to time for an indefinite period, without entering upon the trial as were had in this case. It may be that such adjournments when made by consent of the parties would preserve the jurisdiction of the court over the case and over the parties themselves, but such consent could not enlarge the obligation of the surety. • The statute and the instrument itself should be construed in such a way that the surety would be able to know in advance of the execution the full scope and extent of the obligation which he is about to assume. If the parties, without his consent, can continue the proceeding by adjournments for an indefinite time, it would be impossible for him to know when his liability is to end. If these views are correct, the failure of the defendant in the proceeding to appear before the court on the 4th of May was not a breach of the conditions of the bond as the surety was not bound for his appearance at that timé.”
*333People v. Scott (67 N. Y. 585) is also an authority to the effect that the motion to vacate this judgment should have heen granted. There the defendant was arrested upon a warrant charging him with the abandonment of his family. An adjournment was had and a bond given, conditioned for his appearance before the justice of the peace who issued the warrant, at nine-thirty o’clock on July 3,1874, “ and from time to time as directed by said justice.” The hearing was adjourned from time to time, entry thereof being made upon the bond. On September 4, 1874, an adjourned day, the defendant did not appear, and the justice made the following indorsement on the bond: “ The within-named Joseph E. Bowe called in open court and failed to appear. Ordered, that the within bond be, and the same hereby is forfeited,” and directed that the same be prosecuted according to law. Held, that these facts did not establish a breach of the condition of the bond, and" that the surety was not liable thereon.
Upon these authorities and the stipulation, therefore, I do not think the surety is liable because the defendant did not appear on the twenty-first of March, at the time and place to which the proceeding had been adjourned. The surety, as already said, had no knowledge of and did not consent that the examination of the defendant be adjourned to that date. What he obligated himself to do was to produce the defendant on the seventh of March, at the time and place mentioned in the stipulation. He complied with that obligation by producing the defendant at that time and place.
For these reasons, I am of the opinion that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
Patterson, J., concurred; Laughlin, J., concurred in result; Ingraham and Hatch, JJ., dissented-.