People ex rel. Smyth v. Craig — 195 A.D. 857

Majority

p. 857

The People of the State of New York ex rel. Nathan A. Smyth, Respondent, v. Charles L. Craig, as Comptroller of the City of New York, Appellant.

First Department,

March 4, 1921.

Headnote

Attorney-General — power to fix compensation for services rendered to Attorney-General as counsel in New York city before appointment as deputy — claim is subject to audit by comptroller of city under Greater New York charter, section 1583.

A claim for compensation as counsel to the Attorney-General prior to an appointment as Special Deputy Attorney-General to act in New York city, cannot be fixed by the Attorney-General, but must be audited by the city comptroller as provided by section 1583 of the Greater New York charter.

Page and Greenbatjm, JJ., dissent, the latter with opinion.

p. 858

Appeal by the defendant, Charles L. Craig, as comptroller of the city of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of October, 1920, granting relator’s motion for a peremptory writ of mandamus requiring him to draw his warrant for. the compensation of the relator.

John F. O’Brien of counsel [George P. Nicholson and Russell Lord Tarbox with him on the brief; John P. O’Brien, Corporation Counsel], for the appellant.

Isidor J. Kresel, for the respondent.

The bill as rendered for which the warrant is directed is for $6,500; $6,000 thereof is for services rendered after relator had been appointed Deputy Attorney-General; $500 thereof is for services rendered to the Attorney-General as counsel prior to the appointment of the relator as a deputy. As to the services rendered as Deputy Attorney-General the appeal should be determined as announced in the case of People ex rel. Randy v. Craig ( 195 App. Div. 850 ), the decision of which is handed down herewith. As to the services rendered as counsel to the Attorney-General, I find no legislative authority to the Attorney-General to fix the compensation thereof at $500. Therefore, I think the claim is subject to the audit of the comptroller. The* order should, therefore, be modified so as to direct the comptroller to draw his warrant for the sum of $6,000, and as modified affirmed, without costs.

Clarke, P. J., and Dowling, J., concur; Page, J., dissents as to the compensation after appointment as Deputy Attorney-General; Greenbaum, J., dissents with an opinion, which is printed on page 856.

Order modified as directed in opinion and as so modified affirmed, without costs.