Opinion
June 28, 1949.
Appeal by plaintiff from so much of an order which denies her motion for summary judgment on the first cause of action and grants defendant's cross motion for summary judgment on all three causes of action in the complaint, and from the judgment dismissing the complaint entered thereon. The order appealed from also dismisses a counterclaim contained in the answer, but there is no appeal therefrom by defendant. The complaint contains three causes of action: (1) to recover a bankbook deposited with defendant as security when it issued a bail bond for plaintiff's son, which bail bond plaintiff claims is null and void because her son was not then in custody; (2) to recover the $100 premium plaintiff paid for the alleged void bail bond; and (3) to recover treble damages under subdivision 5 of section 554-b of the Code of Criminal Procedure, because plaintiff claims she paid a premium of $100 for the bail bond, although the statutory premium is $50. A defendant may be admitted to bail after indictment upon the bench warrant issued for his arrest and prior to his being taken into custody. (Code Crim. Pro., § 554, subd. 3.) Although it does not appear in this record whether or not a bench warrant was issued before defendant was admitted to bail, we must assume that there was one because of the presumption of the regularity of judicial proceedings. On this basis, the bail bond issued by defendant was valid. Summary judgment should not have been granted with respect to the third cause of action because there was a question of fact as to the amount paid to defendant's agent as the premium for the bail bond. Order modified on the law and the facts as follows: by striking from the second ordering paragraph the words following "cross motion" and inserting in place thereof the following: "for summary judgment be and it hereby is granted as to the first and second causes of action, and denied as to the third cause of action; and it is further"; and by striking from the third ordering paragraph the words following "dismissing the" and inserting in place thereof the following: "first and second causes of action set forth in plaintiff's complaint, and the defendant's counterclaim, on the merits, without costs." As thus modified, the order, insofar as appealed from is affirmed, without costs, and the action is severed as to the third cause of action. The judgment appealed from is modified on the law and the facts in accordance with the foregoing modification of the order upon which it was entered, and, as so modified, is unanimously affirmed, without costs. Johnston, Adel, Sneed and MacCrate, JJ., concur; Nolan, P.J., concurs in result. [See post, p. 1001.]