This case comes before us upon an appeal from an order denying a motion to vacate a judgment entered upon an order forfeiting a bond given by this appellant to insure the attendance of one George Clark, arrested for a violation of section 344 of the Penal Code, during his examination before a magistrate. The motion was made upon an agreed state of facts, to which is annexed a copy of the bond *334and of the order forfeiting the bond. The facts as agreed upon are that on February 26, 1901, a magistrate issued a warrant for the arrest of one Clark ; that on the morning of February 27,1901, Clark was arrested under this warrant and arraigned before the magistrate; that Clark being informed of his right to be represented by counsel, and the deposition upon which the warrant was issued having been read to him, he demanded an examination of the charge against him, and requested that the examination be adjourned to a future day; that thereupon the magistrate adjourned the said examination until two o’clock p. at. on March 7, 1901, and fixed the bail at the sum of $2,500. The appellant in this proceeding became the bail. The undertaking recites that an information had been laid before a magistrate charging Clark with a violation of section 344 of the Penal Code, and that he having appeared before said magistrate for an examination of said charge and the examination having been adjourned “ to some other day,” the appellant, with the said Clark, “ 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.” There was in this undertaking no time stated at which the defendant was to appear before the magistrate. He was to appear “ during the said examination.” By reference to the Code of Criminal Procedure under which this bond was given it appears that in section 188, when a person charged with a crime is brought before a magistrate, the magistrate is required immediately to inform him of the charge against him. He must also allow the person charged a reasonable time to send for and employ counsel, and must adjourn the examination for that purpose. (§189.) By section 190 it is provided that the magistrate, immediately after the appearance of counsel, or if none appear and the defendant require the aid of counsel, must, after waiting a reasonable time therefor, proceed to examine the case, unless the defendant waives examination. By section 191 it is provided that the examination must be completed at one session, unless the magistrate for good cause shown, adjourn it; that the adjournment cannot be for more than two days at each time, unless by consent or on motion of the defendant. By section 192 it is pro*335vided that if an adjournment be had for any cause, the magistrate must commit the defendant for 'examination, or discharge him from custody, upon his giving bail to appear during the examination.
In construing this bond it must be read in connection with the sections of the Code under which it is given. These provisions for securing to a person charged with crime the aid of counsel upon his examination, allowing an adjournment when the application is made on his behalf for a period not exceeding two days, and requiring the magistrate to admit him to bail when an adjournment is allowed, are all for the benefit of the prisoner and to secure to him an examination conducted according to legal rules under which his rights may be preserved and protected. The statute contemplates that a person accused of a crime shall have counsel. It contemplates that such counsel shall appear for the defendant, performing the ■ usual duties of counsel in such proceedings. It is also contemplated that an adjournment for a considerable period may be necessary to enable the defendant properly to present his case; and when counsel thus employed appears for the defendant and moves for an adjournment, and that motion is granted by the magistrate, it must be conceded, I think, that such a motion was a motion made by the defendant and justifies the magistrate in granting an adjournment. Now, this defendant when arrested and brought before the magistrate was informed of his right to be represented by counsel, and the deposition in support of the information was read to him. He demanded an examination and asked for an adjournment and to be admitted to bail. This was in effect the commencement of the proceeding as required by section 188, and upon granting the adjournment the magistrate was bound by section 192 to commit the defendant for examination or discharge him from custody upon his giving bail “ to appear during the examination * * * to make sure of his appearance at the time to which the examination is adjourned.” The magistrate was, by section 191 of the Penal Code, required to complete the examination at the session upon which the prisoner is brought before him unless for good cause shown he should adjourn it; but the Oode plainly contemplates the necessity for an adjournment after the examination was thus commenced, and where the adjournment is on motion of the defendant, it may be made for any number of days. From the statement of facts it appears that the *336magistrate complied with this request' and adjourned the further' examination to March seventh. To procure the release of the defendant this undertaking was given, and by it the surety agreed to pay to the People of the State of New York the sum of $2,500 unless the defendant should personally appear before the said city magistrate during the said examination. The examination was commenced and was then adjourned at the request of the defendant. By the express provisions of the undertaking it was not limited to his appearance before the magistrate upon the séventh of March. If that was the obligation assumed, there is no reason why the magistrate should not have so expressed it. There is no provision allowing the magistrate tó require a defendant to give a new bond pending the examination upon the adjourned day or to commit him to custody when he has once given bail; nor to give the surety notice that the examination has been adjourned, whether the surety was present upon the day to which the examination was originally adjourned or not. "When a further adjournment is had, the proceedings upon the adjourned day are a part of the one examination that. the statute requires, and until that examination is completed the defendant is bound to appear, whether it takes one or several days. It is to the entire examination, whether on one or several days, that the bond applies. Assuming then that the surety would have been liable for a failure of the defendant to appear upon the adjourned day, what is it in this proceeding that relieves Mm from liability? Nothing except the fact that upon the first adjourned day the examination was on motion of the defendant’s attorney further adjourned. By the stipulation it appears that before the hour for which the examination was set the attorney for the defendant requested an adjournment of the same, which request the magistrate granted.. As we have seen, the Code contemplates the appearance of an attorney for a person charged with a crime. By the stipulation we must assume that the defendant had procured such attorney and that the attorney was acting for him, and such attorney occupying such relation moved for a further adjournment of the examination. It is not disputed but that the magistrate had' the power to grant such an adjournment on motion of the defendant, and certainly the motion of his duly authorized attorney for such an adjournment must be considered the motion of the defend*337ant. Nor can it be said that the obligation of the appellant was at all affected by the fact that the motion was made by the attorney for the defendant before the hour at which the examination was to take place. I can see no reason why such adjournment, granted under the circumstances detailed, was not an adjournment upon motion of the defendant, and an adjournment which should be granted when essential to the protection of the defendant’s rights; and, where the .surety voluntarily bound himself to be responsible if the defendant should not personally appear before the magistrate “ during the examination ” why he should not continue liable upon the bond, unless the defendant appeared upon the days to which'the examination was finally adjourned.
In People ex rel. Van Aken v. Millham (100 N. Y. 277) the court said : “ The purpose of the bond required by the statute is to release the defendant from arrest. Without it he would have to remain under arrest, as the examination could not proceed without his presence. * * * If the sureties upon such a bond would be discharged whenever the justices should permit the defendant to leave the room where they were sitting; or'whenever they took a recess for dinner, or adjourned to procure the attendance of a witness; or over night; or over Sunday; or to meet the exigencies contemplated by section 20, the purposes of the statute and of the bond would be defeated. If such were the rule, the defendant would have to be placed under arrest when he came to his examination, or he would have to bring his sureties with him so as .to obtain their assent to the action of the justices. The object of the statute is not only to secure the attendance of the defendant at the adjourned day, but during the trial until the termination thereof. The bond binds him to appear at and during the examination, which may last one or several days, and which may, from the engagements of the justices, or other contingencies, be adjourned from time to time. If this case, after the examination had commenced, had been adjourned over night or over Sunday, would not the sureties have been bound ? And if they would not be discharged in such case, why should they be discharged by any adjournment for several days? After the examination has been entered upon there is no provision for a new bond, and it is not believed that the justices could exact a new one *338and in default thereof order the defendant under arrest. Having given the bond he is entitled to be at liberty until the close of the examination and the decision thereon. When an examination is thus continued from day to day, or from week to week, it is a continuance of the same court held by the same justices, and it is the same examination and hearing; and ‘the leave to depart’ contemplated by the law is the leave to go at the end of the examination, when the same has in some way been brought to a conclusion, so that the presence of the defendant is no longer required for any purpose, dr some leave to go finally out of the court or from the court. Here there was no leave to the defendant to depart out of the court or from the examination; but he was required to be and' appear on the further hearing of the matter on the adjourned day.”
I have quoted at length from this case as it seems to me to apply to the case at bar and to be a complete answer to the position taken by the appellant. In People ex rel. Ritzenthaler v. Higgins (151 N. Y. 570) the case of People ex rel. Van Alcen v. Millham was referred to with approval, and the case then under consideration was distinguished because in the Higgins case the surety was bound if the. defendant failed to appear on the ninth of March, or at such other time or times to which adjournments might be had for the purpose of examination and determination thereon, and it was held that these “last words were not intended to- cover the case of successive adjournments by the consent of parties.” The decision of that case seems to have been placed strictly upon the form of the bond by which the surety was bound if his principal failed to appear on the day named in the undertaking, and that the words used in the city charter under which this bond was given which allowed adjournments for the purpose of an examination was “ for the purpose of completing an examination already commenced.” But in the Code of Criminal Procedure there is no such provision. There is no limitation upon the power of the magistrate to adjourn an examination on motion of the defendant. In the Higgins case it was held that neither' the statute nor the terms of the bond contemplated or provided for successive adjournments from time to time for an indefinite period without entering upon the trial as they were had in that case. In this case there.was but one adjournment after the adjournment given upon the execution of this bond. That was granted on *339an application made on behalf of the defendant, presumably for his benefit or protection. It was clearly within the power of the magistrate to make it. The necessity of such an adjournment was recognized by the statute, and the defendant having failed to appear upon the day to which the examination had been at his request adjourned, ■there certainly seems to me to be no reason why his surety should be discharged. The motion is based upon the most technical reasoning, where the form of the adjournment could have made no possible difference to the surety, and the success of such an application would add a serious obstacle to the efficient prosecution of the criminal law.
I think the order appealed from should be affirmed.
Hatch, J., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.