78 A.D. 567 | N.Y. App. Div. | 1903
The relator was assigned as counsel to defend one Anderson on the trial of an indictment for murder in the first degree. After the indictment was finally disposed of, he was allowed by the court having jurisdiction the sum of $500 for his services, and the additional sum of $24.10 for his personal and incidental expenses, in pursuance of the provisions of section 308 of the Code of Criminal Procedure. The comptroller of the city of New York refused to pay more than the sum of $514.10, claiming that the additional item of $10 was not allowed as a personal and incidental expense. The order appealed from denies the relator’s application for a writ of peremptory mandamus requiring the payment of the entire claim, and counsel agree that it was made upon the authority of People esa
The item in dispute here relates to a trifling expense incurred by the relator in procuring for his personal use in the preparation for the trial an accurate survey and diagram of the basement of the house where the homicide was committed. In the GantweTl case the disputed item was the sum of $950, a liability which the relators claimed to have incurred as the compensation due to expert witnesses. There is no analogy between the two items, notwithstanding the fact that the diagram referred to was offered in evidence by the relator upon the trial. That it was subsequently used as evidence does not militate against the fact that its cost represented a reasonable personal and incidental expense of the relator within the. meaning of the provision of the Code. I think it comes fairly within the limitations suggested by the language of Mr. Justice Patterson in the GantweTl case, at page 599, viz.: “ The personal and incidental expenses for the payment of which provision is made are such as relate to those incurred by counsel on his personal account. The word ‘ incidental,’ as used in the statute, is associated with the word ‘ personal,’ and is used conjunctively. It does not confer authority upon the counsel to make contracts of a special character involving a large liability to be cast upon the county, for by the section of the Code cited the compensation and the personal and incidental expenses of counsel are made a county charge. The word 1 incidental,’ as used in the statute, must be construed in accordance with its ordinary meaning, which is: ‘Of minor importance, occasional, casual, as incidental expenses; ’ ‘ something subordinate or casual; often used in the plural to mean minor expenses.’ (Century Diet.) ”
The cost of the survey and diagram in question comes strictly within the construction of the statute given in the case cited as an item of minor expense incidentally incurred on the personal account and for the personal use of the relator. There is nothing in the decision of this court in the case of Driggs v. City of New York (72 App. Div. 632) in conflict with this view. In that case it was impossible to tell what items were allowed and what were rejected upon the trial, and many of them were unquestionably within the condemnation of the Cantwell case.
This view appears to have been adopted and enforced by the Court of Appeals in issuing certificates for compensation and expenses of counsel on appeal, the only authority therefor being the section of the Criminal Code under consideration. (See People v. Barone, 161 N. Y. 451, 477, and People v. Ferraro, 162 id. 545.)
The order should be reversed and the motion for a peremptory writ granted.
Goodrich, P. J., Bartlett, Woodward and Jenks, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion for peremptory writ granted, with costs.