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FINE, Town OF.
FINES, PENALTIES AND FORFEITURES. $S 1-11. Proceedings to Collect a Fine.
12-17. Action by a Private Person for a Penalty or Forfeiture. 18-25. Action for a Fine, Penalty or Forfeiture, or upon a Forfeited Recognizance.
Proceedings to Collect a Fine. 1 Schedule and certificate made by clerk. Where a fine has been imposed by à court of record, upon a grand or trial juror, or upon any officer or other person, without being accompanied with an order for the immediate commitment of the person so fined, until the fine is paid, the clerk of the court, immediately after the close of the term at which the fine was imposed, must prepare a schedule, containing, in separate columns, the following matters:
1. The name of each person fined.
2. His place of residence, where it appears, from the papers on file or before the court, to be within the county.
3. The amount of the fine imposed upon him. 4. The cause for which the fine was imposed.
The clerk must subjoin to the schedule a certificate, to the effect, that it contains a true abstract of the orders imposing fines, and must annex it to the warrant specified in the next section. Code Civ. Pro., § 2293.
epis paid, the ole the immediate icer or other per
2 Issue of warrant for collection. The clerk must immediately issue a warrant, under the seal of the court, directed to the sheriff of the county, and commanding him to collect from each of the persons, named in the schedule annexed to the warrant, the sum therein set opposite that person's name; and to pay over the sum collected, to the treasurer of the county. The warrant is the process of the court, by which the fines were imposed. Code Civ. Pro., § 2294.
3 Same, if delinquent resides in another county. If a delinquent resides in another county, a separate warrant, for the collection of the fine imposed upon him, with an appropriate schedule annexed thereto, must be issued, in like manner, to the sheriff of the county where he resides. Code Civ. Pro., § 2295.
4. Warrant, how executed. The sheriff, to whom a warrant is issued, must collect each fine out of the personal property of the person fined, as prescribed in chapter thirteenth* of this act, for the collection, by levy upon and sale of personal property, of an execution issued out of a court of record; and he is entitled to like fees thereupon. If sufficient personal property of a delinquent cannot be found to pay the fine and the fees, the sheriff must arrest the delinquent, and detain him in custody until he pays the same, as upon an execution against the person, issued in an action, out of the supreme court; and he is entitled to like fees thereupon. Code Civ. Pro., § 2296.
5 Return thereof. The sheriff must return the warrant, with his proceedings thereupon, at the term of the court; or, where the fine was imposed, in any county except New York, by the supreme court, or the county court, at the term of the county court; held next after the expiration of sixty days from the receipt thereof. If he fails to do so, the district attorney must take the same proceedings to compel a return, as may be taken by a judgment creditor, where a sheriff omits to return an execution, issued out of the supreme court. Code Civ. Pro., § 2297, as am'd L. 1895, c. 946.
6 Proceedings if fine not collected or delinquent arrested. Where it appears, by the return, that a fine remains uncollected, and it does not appear that the sheriff has the delinquent in custody, the district-attorney must, if he has good feason to believe that the sheriff might, with due diligence, have collected the fine, or arrested and detained the delinquent, commence an action against the sheriff, in the name of the people. Otherwise he must direct the clerk to issue a new warrant, or to include the fine in the schedule, annexed to the next warrant, to be issued by him. A new warrant may, from time to time, be issued, or the fine may be included in the schedule annexed to a subsequent warrant, until it is collected. Code Civ. Pro., § 2298.
7 Names included in schedule. Where the clerk issues a warrant, as prescribed in this title, he must include in the schedule thereto annexed, the name of each person who has been fined, prior to the issuing thereof, and whose fine remains then wholly or partly unpaid, and not remitted by the court. Code Civ. Pro., § 2299.
8 Action against sheriff for omission of duty. An action may be maintained, in behalf of the people, against a sheriff, to whom a warrant is directed and delivered, as prescribed in this title, † to recover damages for any omission of duty with respect to the same, in a case where a judgment creditor might maintain an action against a sheriff, to whom an execution issued out of the supreme court is directed and delivered. In such an action, the people are entitled to recover the same damages, which a judgment creditor would be entitled to recover, if the order imposing the fine was a judgment of the supreme court. Code Civ. Pro., $ 2300. 66 N. Y. St. R. 208.
9 Special provisions not affected. This titlet does not apply to a case, where special provision for the collection of a fine is otherwise made by law. Code Civ. Pro., $ 2301. * Executions, SS 1-136.
+ This subject, SS 1-9.
10 Remission of fines. No fine imposed by any court, for any criminal offense, shall be remitted or reduced, except upon an application made in open court, and upon proof that two days' notice in writing, of such application, and copies of the papers upon which the same is founded, have been served upon the district attorney of the county in which the conviction was had, and by an order of the court, entered by the clerk thereof in its minutes. L. 1861, c. 333, § 1. See L. 1882, c. 410, $ 1490. For $ 2 see Recognizances, $ 1.
11. Limit of fine. Where, in this code, or in any other statute making any crime punishable by a fine, the amount of the fine is not specified, a fine of not more than five hundred dollars may be imposed. Pen. Code, § 706.
Action by a Private Person for a Penalty or Forfeiture. 12 Action by person specially aggrieved. Where a penalty or forfeiture is given, by a statute, to a person aggrieved by the act or omission of another, the person to whom it is given, may, if it is pecuniary, maintain an action to recover the amount thereof; or, if it consists of the forfeiture of a chattel, he may maintain an action to recover the chattel. or its value, or other damages, as the case requires. Code Civ. Pro., § 1893. 46 Barb. 287, 289; 4 Den, 374, 379, aff’d, 2 N. Y. 183; 58 Hun, 241; 34 N. Y. St. R. 240; 39
id. 158; 12 N. Y. Supp. 144; 14 id. 876. 13 Action by common informer. Where a penalty or forfeiture is given, by a statute, to any person who sues therefor, an action to recover it may be maintained, by any person, in his own name; but the action cannot be compromised or settled, without the leave of the court in which it is brought. Code Civ. Pro., $ 1894. 29 Barb. 239; 6 Johns. 1; 58 Hun, 241; 34 N. Y. St. R. 240; 39 id. 158; 28 id. 166; 7 N. Y.
Supp. 697; 12 id. 144; 14 id. 876; 7 Lans. 412; 4 Den. 269. See Limitations, $ 26.
14. Sami : service of summons. The summons in an action, brought as prescribed in the last section, can be served only by an officer, authorized by law to collect an execution, issued out of the same court. The summons, when issued, cannot be countermanded by the plaintiff, before the service thereof; and, immediately after it has been served, the officer, who served it, must file it, with his certificate of service, in the office of the clerk, or deliver it, with a like certificate, to the magistrate by whom it was issued, as the case requires. Code Civ. Pro., $ 1895. 20 Civ. Pro. 318; 39 N. Y. St. R. 157, 196; 14 N. Y. Supp. 365, 875; 15 id. 148.
15 Same: former collusive recovery not a bar. In an action to recover a penalty or forfeiture, given by a statute, brought by any person, other than the person aggrieved or a public officer, the plaintiff may recover, notwithstanding the recovery of a judgment, for or against the defendant, in an action brought therefor by another person, if he establishes that the former judgment was recovered collusively and fraudulently. Code Civ. Pro., § 1896.
16 Indorsement upon summons. In an action to recover a penalty or forfeiture, given by a statute, if a copy of the complaint is not delivered to the defendant with a copy of the summons, a general reference to the statute must be indorsed upon the copy of the summons so delivered, in the following form, “According to the provisions of,” etc.; adding such a description of the statute, as will identify it with convenient certainty, and also specifying the section, if penalties or forfeitures are given, in different sections thereof, for different acts or omissions. Code Civ. Pro., § 1897. 61 Barb. 615; 67 id. 385; 16 id. 167; 19 id, 343; 21 id. 319, 508; 22 id. 137; 42 N. Y. Super.
19; 48 id. 231; 16 How. Pr. 46; 27 id. 51; 10 Daly, 396; 8. c. 2 Civ. Pro. 125; s. c. 14 W. D. 362; 34 Hun, 112, 271; 12 id, 65; 15 Abb. N. C. 231; 8. c. 66 How. Pr. 447; 15 Abb. N. C. 462; 8. c. 7 Civ. Pro. 406; 16 Abb. N. C. 230, 233; 29 id. 114; 17 Wend. 85; 20 W. D. 114; 22 id, 261; 9 Civ, Pro. 259, 264; 12 id. 319, 320; 20 id. 312; 39 N. Y. St. R. 243;
ure, noteified; and the here judgmea, may award
28 id. 37; 25 id. 907; 6 N. Y. Supp. 658; 8 id. 124; 14 id. 382; 21 id. 452; 46 N. Y. 644; 52 id. 383; 67 id. 506; 3 N. Y. 188; 30 id. 505; 60'id. 10; 47 id. 104; 15 Daly, 341; 4 id. 353; 3 Keyes, 236; 24 Hun, 553; 14 Abb. N. S. 256; 7 Lans. 462; 3 Abb. Ct. App. Dec.
529. 17 Extent of recovery. Where a statute gives a pecuniary penalty or forfeiture, not exceeding a specified sum, an action may be maintained to recover the sum specified; and the court, jury, or referee, by which or by whom the issues of fact are tried, or, where judgment is taken by default for failure to appear or plead, the damages are ascertained, may award to the plaintiff the whole sum, or such a part thereof, as it or he deems proportionate to the offence. Code Civ. Pro., § 1898. 14 Hun, 264, 266; 8 N. Y. Supp. 124.
Action for a Fine, Penalty or Forfeiture, or upon a Forfeited Recognizance. 18 When action can not be maintained. Whenever, by the decision of the appellate division of the supreme court, a construction is given to a statute, an act done, in good faith, and in conformity to that construction, after the decision was made, and before a reversal thereof by the court of appeals, is so far valid, that the party doing it is not liable to any penalty or forfeiture, for an act that was adjudged lawful by the decision of the court below. But this section does not control or affect the decision of the court of appeals, upon an appeal actually taken before the reversal. Code Civ. Pro., § 1961, as am'd L. 1895, c. 946. 83 N. Y. 178.
19 Action for penalty or forfeiture in behalf of the people. Where real or personal property has been forfeited, or a penalty incurred, to the people of the state, or to an officer, for their use, pursuant to a provision of law, the attorneygeneral, or the district-attorney of the county in which the action is triable, must bring an action to recover the property or penalty, in a court having jurisdiction thereof. Where the supreme court and a justice's court have concurrent jurisdiction of the action, it may be brought in either, at the election of the attorneygeneral or district-attorney. A recovery in such an action bars a recovery, in any other action, brought for the same cause. Code Civ. Pro., § 1962. 2 N. Y. 17: 134 id. 1: 13 Abb. Pr. N. S. 207; 56 Hun. 17; 58 id. 241; 66 id. 465; 34 N. Y. St.
R. 240; 43 id. 459; 45 id. 313; 50 id. 129; 21 N. Y. Supp. 381, 382; 12 id. 144. 20 Proceeds of recovery in such action. Money recovered in such an action, which is not otherwise specially granted or appropriated by law, must, when collected, be paid into the treasury of the state. Code Civ. Pro., § 1963.
21. Application of certain provisions. Sections 1897 and 1898* of this act apply to an action, brought as prescribed in the last two sections. Code Civ. Pro., § 1964.
22 Recognizance, how forfeited. Where the condition of a recognizance is broken, an order of the court, directing the prosecution of the recognizance, is a sufficient forfeiture thereof. Code Civ. Pro., § 1965. 17 Wend. 252, 256; 67 N. Y. 585; 39 Barb. 73; 5 Den. 58.
23 Action on same. Where a recognizance to the people is forfeited, the district-attorney of the county in which it was taken, must, unless the court otherwise directs, forthwith bring an action to recover the penalty thereof. It is not necessary, in such an action, to allege or prove any damages, by reason of the breach of the condition; but where the people are entitled to judgment therein, they must have judgment absolute, for the penalty of the recognizance. Code Civ. Pro., § 1966. 6 Daly, 120, 406, 409, 410, 493; 5 id. 365, aff'd, 59 N. Y. 83; 77 Daly, 23. 47; 5 id. 527: 7 Hun.
114, 235; 40' id. 199; 37 N. Y. 586; 17 Wend. 252, 256; 4 Park, 45; 1 Sheld. 429; 21 Barb.
130; 67 N. Y. 585; 74 id. 320; 63 id. 611; 2 Hilt. 523. 24. Disposition of proceeds. Within thirty days after a district-attorney receives or collects money upon a recognizance, or for a penalty or forfeiture, belonging to the county, he must pay to the county treasurer of his county, deducting
* SS 16, 17, ante.
only his necessary disbursements; except that, where he does not receive, as his compensation, a salary fixed pursuant to law, the county court may, by an order entered in its minutes, allow him to retain also a sum, specified in the order, for his reasonable costs and expenses, and a reasonable counsel fee. Code Civ. Pro., § 1967.
25 Account to be rendered by district attorney. Each district-attorney must render to the first term of the county court of his county, held in each calendar year, a written account, verified by his affidavit, of all actions brought by him upon recognizances, or for penalties or forfeitures belonging to the county, or to the state; of all his proceedings therein; of all judgments recovered by him therein; and of all money, collected by him from any person, belonging to the county or to the state. This section applies to a district-attorney who has gone out of office, during the preceding calendar year. Code Civ. Pro., § 1968. 44 How. 595; 131 N. Y. 468.
Fines. Note.— The distinction between fines, penalties, and forfeitures is not always easy to draw.
Generally speaking, a fine is imposed in a criminal action or proceeding, or for a contempt. A penalty is collected by a civil action. A forfeiture is the loss of property or of a right previously held. The statutes, however, often use these terms interchangeably, and it is then necessary to derive their character from the context. The classifica
tion here given follows as far as possible the above distinctions. FOR ADULTERATION, ETC.; see Agricultural Law, $ 53; Domestic Commerce Law, $ 101;
Public Health Law, $ 41. FOR APPLYING SCHOOL MONEYS TO PAYMENT OF UNQUALIFIED TEACHER; see Consolidated
School Law, $ 124. ARREST IN ACTIONS TO RECOVER; see Arrest, $ 2; Justices' Courts, S 35. FOR AUDIT OR PAYMENT OF FRAUDULENT CLAIMS; see Public Officers Law, $ 119. BAIL FOR OFFENSES PUNISHABLE BY; see Arrest, $ 116. FOR BODY STEALING, ETC.; see Burial, $$ 4, 6. FOR BRIBERY, ETC.; see Bribery, SS 1-6, 8, 9; Civil Service, $ 13; Indian Law, SS 59a, 596;
New York Harbor, S8 51, 54, 63. FOR BRINGING LIQUOR INTO PRISONS; see Prisons, $ 137. FOR CAUSING FOREST FIRES; see Fisheries, etc., Law, $ 281. FOR CAUSING REARREST OF PERSON DISCHARGED ON HABEAS CORPUS OR CERTIORARI; see
Habeas Corpus, SS 43, 62. FOR COERCION BY EMPLOYERS; see Conspiracy, 8 5. COLLECTION OF, FROM CORPORATIONS; see Corporations, $ 195. FOR COMPOUNDING MISDEMEANORS, ETC.; see Compounding Crimes, $ 1. FOR CONTEMPTS, GENERALLY; see Contempt, SS2, 17, 20, 21; Courts, SS 9, 14; Justices'
Courts, SS 11, 15. AGAINST CORPORATIONS IN PLACE OF IMPRISONMENT; see Penal Code, $ 7. FOR COUNTERFEITING MARKS ON BARRELS; see Domestic Commerce Law, SS 76, 77. CRIMES MAY BE PUNISHED BY: see Crimes, S 1. For DEFACING RULES RESPECTING PREVENTION OF FOREST FIRES; see Fisheries, etc.,
Law, $ 271. FOR DELIVERY OF FALSE BILL OF LADING TO CANAL COLLECTOR; see Canal Law, $ 201. For DELIVERY OF PROPERTY WITHOUT SURRENDER OF WAREHOUSE RECEIPT, ETC.; see
Fraud, $ 16. FOR DENYING`RIGHTS ON AccounT OF CREED, COLOR, ETC.; see Rights, Bill of, SS 24, 25. DEPOSIT IN LIEU OF BAIL APPLIED TO PAYMENT OF; see Arrest, & 151. FOR DRAWING OFF WATER FROM CANALS; see Canal Law, $ 205. For EMBEZZLEMENT; see County Law, $ 149c; Larceny, SS 14-16; Public Oficers Law,
TO DESTROY DISEASED BEES; see Agricultural Law, S 108.
Law, $ 202.