(dissenting). The question is: may a compensated surety and its indemnitor, on a bail bond, escape forfeiture and liability when the convicted defendant absconds, by showing that the release on bail was impermissible under section 552 of the Code of Criminal Procedure, because the defendant’s conviction was for a second felony? Public policy and the interests of public justice certainly call for a negative answer to that question, and there is nothing to prevent it, since (whatever be the law in other jurisdictions) there is no New York statute or controlling decision on the question, and such New York authority as we have points unmistakably toward holding the surety liable. The decision we should follow here is McClare v. Massachusetts Bonding & Ins. Co. (266 N. Y. 371, 375) which held that a compensated surety, which had issued to a New York State commission a bond unauthorized by law, was estopped from denying its validity. ‘ ‘ The defendant surety, when it solicited this bond, must have been aware of the terms of the statute creating the State Athletic Commission, and all the other circumstances under which the bond was given, and yet voluntarily sought the premium and gave the bond in the light of this knowledge. This bond was not made conditional, depending upon the validity of the regulations of the State Athletic Commission. The statute and the circumstances under which the bond was issued have not changed. The only change is that the liability provided for in the bond has arisen. Tinder these conditions, the surety either *526knew the law or it cannot now plead ignorance of it and obtain the aid of a court in holding void a bond duly executed, which for the purposes of receiving premiums, it held out as valid then.” Even the dissent in the McClare case (supra, p. 382) suggests that, had not the bond there run to third parties to whom the commission owed no duty, it would have been held enforcible as a “ common law ” contractual obligation. We do not have to go so far at this time as to hold that a public officer, taking an illegal bond, may (like a private obligee, see Toles v. Adee, 84 N. Y. 222, 236; Mittnacht v. Kellermann, 105 N. Y. 461, 467) enforce it as a binding contract, when there has been consideration for it and reliance on it by the public officer. All we need here, as a ground for an obviously right and just result, is the estoppel ground of McClare v. Massachusetts (supra), a ground just as valid here as there. There is no reason why the People of the State of New York cannot have the benefit of an estoppel.
The judges who ordered and approved this bond acted erroneously in law, because of a mistake of fact. They were not without general jurisdiction of the person and the subject matter. Their error was committed not by way of casting an unauthorized burden on a citizen, but by way of releasing him from custody on his own motion. “ There is an obvious distinction between cases where a charge or burden is attempted to be fastened upon a party by a proceeding in invitum, and those where the charge or burden springs from his own voluntary act ” (People v. Kane, 4 Denio 530, 545). Certainly, the defendant himself would have been estopped or prevented by the courts from using that mistake of fact to resist rearrest, had the mistake been discovered. A fortiori, the surety who took a premium for writing the bond should get no benefit from a judicial mistake of fact.
The order should be affirmed, with costs.
Lewis, Ch. J., Dye and Fboessel, JJ., concur with Conway, J. ; Desmond, J., dissents in opinion in which Fuld, J., concurs; Van Voobhis, J., taking no part.
Order reversed, etc.