Hyperlawhypertext legal database People ex rel. Van Doren v. Prendergast 151 N.Y.S. 674

← Cases

People ex rel. Van Doren v. Prendergast

151 N.Y.S. 674 Court N.Y. App. Div. Decision date 1914-11-13 English

Contents

Majority

p. 674
PEOPLE ex rel. VAN DOREN et al. v. PRENDERGAST, City Comptroller.
(Supreme Court, Appellate Division, Second Department.
November 13, 1914.)

Headnote

Costs (§ 294[1] ) — Appointment of Counsel — Allowance of Pees.
Under Code Cr. Proc. § 308, providing that the court shall allow counsel appointed by the court for accused in a capital case reasonable compensation, it is a proper exercise of the court’s discretion to allow two attorneys, appointed to defend accused, charged with murder in the first degree, $250 each for successfully demurring to the indictment, and mandamus to the comptroller will lie to compel payment.
[Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 1105-1108; Dec. Dig. g 294.*]
Appeal from Special Term, Kings County.
Mandamus proceeding by the People of the State of New York, on the relation of Charles Y. Van Doren and another, against William A. Prendergast, as Comptroller of the City of New York, to compel payment of counsel fees allowed by the court under Code Cr. Proc. § 308, for successfully demurring to an indictment for murder in the first degree. The Special Term denied the motion, and relators appeal. Order reversed, and motion for peremptory writ granted. Reversed 214 N. Y. 16 , 108 N. E. 183 .
The opinion of Mr. Justice Aspinall at Special Term is as follows:
This is a motion for a peremptory writ of mandamus directed to the above-named defendant, as comptroller of the city of New York, requiring the said comptroller to forthwith pay to the relators the sum of $250 each as compensation for defending one Rocco Antoniello, indicted for the crime of murder in the first degree, as directed by order of the County Court of Kings County. Upon the facts as presented on this motion, and after a careful examination of the law applicable thereto, I am satisfied that the relators are not entitled to the relief prayed for, and that a peremptory writ of mandamus should not issue herein.
Motion denied. Order signed.
Argued before JENKS, P. J., and THOMAS, CARR, STAPLETON, and PUTNAM, JJ.
John L. Danzilo, of Brooklyn, for appellants.
Charles J. Druhan, of Brooklyn, for respondent.

Order reversed, with $10 costs and disbursements, and motion for peremptory writ of mandamus granted, with $10 costs, upon the ground that the court properly exercised its discretion pursuant to the statute. People ex rel. Acritelli v. Grout, 87 App. Div. 193 , 84 N. Y. Supp. 97 , affirmed 177 N. Y. 587 , 70 N.

Cases cited