People ex rel. McIntyre v. Coler — 16 N.Y. Crim. 23

Majority

p. 23

Supreme Court—Special Term—New York.

July, 1901.

THE PEOPLE EX REL. JOHN F. McINTYRE v. BIRD S. COLER.

(35 Misc. 454.)

Headnote

Counsel—District attorney in New York city may employ.

The former statute applicable to the County of New York as to the employment of counsel by district attorney is unaffected by the present County Law, and where the presiding judge taxes the value of such legal services, his decision cannot be questioned collaterally and payment thereof by the comptroller may he compelled by mandamus.

Motion for peremptory mandamus.

John F. McIntyre, relator, in person.

Eugene A. Philbin, District Attorney, for respondent.

The relator, am attorney and counselor at law, was duly retained by the district attorney of ISTew York county to take the principal part as prosecutor in the second trial of Dr. Samuel J. Kennedy for murder in the first degree. It was an important prosecution, and the relator, having acted in the same capacity on the first trial, was familiar with the facts, and, therefore;, deemed peculiarly qualified for the work. The; authorization was made under* an; aril of the legislature, and whether that statute he section 2, chapter 733 of the Laws of 1872 (vol. 2, pi. 1753) or section 2, chapter 323 of the Laws of 1874 (p. 387) is °'l b-, consequence. In substance, each of said provisions declares- that the district attorney for any county, in which an important oriminial case is to> be tried, may, with the approval of the county judge, filed in the county dark’s office, employ counsel toi assist him in such trial, the cost and expense thereof to; be certified by the judge presiding at such trial, to be a charge on the county in which the indictment, was found, to be assessed, levied and collected by the board of supervisors of such county at its next annual assessment, levy and collection of county taxes after the performance of such services, and thereupon to be paid over to the party entitled to the same. The services commenced' January 2, 1901, and terminated February 25 folloiwing, and for such services the relator duly presented a bill for $7,500, which was submitted for certification to Mr. Justice Fursmah, who presided at the trial, and he reduced the amount, to $5,000, at which sum he certified the bill. On presentation of the certification to, the comptroller, he declined to pay the hill, his contention being that the charge was excessive. The relator, therefore, applies for a mandamus to compel payment of the sum certified. It seems to, be objected that the act relied on was repealed by the Oounty Law (L. 1892, ch. 686). But section 1 of the last-named statute expressly provdes that.it shall not apply to the Oounty of New York. So that the former statute applicable to the County of New York in the respect named

p. 25

is unaffected by the present County Law. The object of the act relied upon by the moving party was to enable the presiding justice, the person best qualified to determine the value of legal services rendered before Mm, to tax the same; and, in People erx rel: Allison v. Board of Education, 26 App. Div. 208 , where a justice of the Supreme Court had acted under a similar statute, the court held that Ms conclusions would not he questioned collaterally, and that payment of the bills allowed by Mm was properly compelled by mandamus. To hold otherwise would determine that this court at Special Term might review the adjudications of a co-ordinate branch of the court having exclusive jurisdiction in the premises. If the district attorney was dissatisfied with the amount fixed by Hr. Justice Fursmam, he should have appealed from the order granting such sum; not having dome so-, he is concluded by the certificate. The relator is, therefore, entitled to the peremptory writ, with costs.

Writ granted with costs.