People v. Bruno

176 A.D. 56, 159 N.Y.S. 776, 1916 N.Y. App. Div. LEXIS 6638

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 9, 1916
• Status: Published

Opinion

Jenks, P. J.:

The judgment upon forfeiture of the undertaking was entered upon a certified copy of the order of forfeiture, as authorized by chapters 119 and 590 of the Laws of 1909,

* which became effective in September, 1909. The defendant contends that there was no authority for such procedure, in that when he entered into the undertaking in January, 1909, the procedure required an action. (Code Grim. Proc. § 595.) The forfeiture occurred in 1914. I think that the procedure authorized by the said statutes of 1909 was proper. (Gildersleeve v. People, 10 Barb. 35, cited in People v. Quigg, 59 N. Y. 83, 90, in which case the constitutionality of this kind of statute is passed upon.) Gildersleeve's Case (supra) is directly in point. The said statutes of 1909 but affect the remedy, and do not strip the defendant of any right of adequate relief. (Code Grim. Proc. § 597; Gildersleeve v. People, supra, 44; People v. Sands, 7 Hun, 235; James v. Stull, 9 Barb. 485; Cooley Const. Lim. [7th ed.] 405, 406, 516.)

The learned counsel for the appellant insists that the question is disposed of by the General Construction Law (being Laws of 1909, chap. 27; Consol. Laws, chap. 22, art. 5, §§ 93, 94, vol. 2, p. 1311). Section 93 reads as follows: “Effect of repealing statute upon existing rights. The repeal of a statute or part thereof shall not affect or impair any act done, offense committed or right accruing, accrued or acquired, or liability, penalty, forfeiture or punishment incurred prior to the time such repeal takes effect, but the same maybe enjoyed, asserted, enforced, prosecuted or inflicted, as fully and to the same extent as if such repeal had not been effected.” And he points out that the Gildersleeve Case (supra) was decided prior to the enactment of the said statute. The source of said section 93 is “ Former Stat. Con. L. (L. 1892, ch. 677) § 31, in part.” (See Birdseye, C. & G. Consol. Laws, p. 1958. See, too, Laws of 1892, chap. 677, §§ 31, 32.) The said section 93 is a substantial re-enactment of part of section 31 last named, which was derived from chapter 21 of the Laws of 1828 (Fifty-first session, second meeting), being bound with Laws of 1829 at page 66. It may be noted that the Statutory Construction Law of 1892 (Laws of 1892, vol. 2, p. 1493) repealed sections 3 and 4 of the said chapter 21 of the Laws of 1828, and left in force section 5, which reads: “ The repeal of any statutory provision by this act shall not affect any act done, or right accrued or established, or any proceeding, suit or prosecution had or commenced in any civil case, previous to the time when such repeal shall take effect; but every such act, right and proceeding, .shall remain as valid and effectual as if the provision so repealed had remained in force.” Thus, as this provision was in force when Gildersleeve's Case (supra) was decided (1850), the written rule of statutory construction then was substantially that of the present day.

The order of the County Court of Kings county is affirmed, with ten dollars costs and disbursements.

Thomas, Carr, Mills and Rich, JJ., concurred.

Order of the County Court of Kings county affirmed, with ten dollars costs and disbursements.

See Code Grim. Proc. § 595, as amd. by Laws of 1909, ehaps. 119, 590, and Laws of 1918, chap. 400.—[Rep.