(dissenting). I dissent, and disagree with the Appellate Division that there was “ no factual basis for the exercise of the [county] court’s discretion in remitting the forfeiture ”. Indeed, I am of the opinion that it was an abuse of discretion to disturb the determination of the County Court *520made pursuant to section 597 of the Code of Criminal Procedure, and to deny the application for remission, even though it was without prejudice “ to the right of the sureties to renew * * * upon proper papers within the statutory period”. (282 App. Div. 548, 549-550.)
The bail bond was executed on October 4, 1948. The District Attorney did not move this case for trial until four years later. In the meantime, defendant, on July 9, 1951, was committed by the County Court of Monroe County to the Rochester State Hospital, where he remained continuously until October 21, 1951. The commitment was based on the examination by two psychiatrists, who confirmed that defendant was mentally incompetent. While in custody of such institution, which is a State hospital (Mental Hygiene Law, § 60, subd. 14), under the “ jurisdiction, supervision and control ” of the State Department of Mental Hygiene (Mental Hygiene Law, § 11), he was allowed to escape on the last-mentioned date.
Aside from the hardship claimed by appellants, it would be a travesty on justice if the People of the State of New York, to whom the bail bond ran and who had defendant in their custody at the time of his escape, were permitted to avail themselves of a forfeiture consequent upon their own lack of ‘ ‘ supervision ’ ’ (see Martindale v. State of New York, 269 N. Y. 554). The State should not be allowed to create a debt and collect money for itself by the careless acts of its own officers (People v. Wirtschafter, 305 N. Y. 515, 522).
The order of the Appellate Division should he reversed and the order of the County Court affirmed.
Lewis, Ch. J., Conway, Desmond, Dye and Van Voorhis, JJ.. concur with Fuld, J.; Froessel, J., dissents in an oüinion.
Order affirmed.