131 Misc. 182 | New York County Courts | 1928
The above proceedings were brought by the overseer of the poor of the town of Franklinville, Cattaraugus county, N. Y., to compel three sons of Elizabeth McMurray to contribute toward her support. The history of the proceedings is set forth in the memorandum heretofore made by this court on August 22, 1927. An order was made and entered based upon said memorandum and decision which provided that the sons should contribute certain sums toward the support of their aged mother, and that the sons should pay the costs and expenses of the proceedings as provided by section 919 of the Code of Criminal Procedure. The petition presented for allowance items of miscellaneous disbursements and expenses amounting to forty-four dollars and thirty cents, and for
Section 919 of the Code of Criminal Procedure provides as follows: “ The cost and expenses of the application must be ascertained by the court, and paid by the relatives against whom the order is made; and the payment thereof, and obedience to the order of maintenance, and to any order for the payment of money, may be enforced by attachment.” This section does not specifically provide for the allowance of any attorney’s fees and the question is what the words “ cost and expenses ” in this section mean and more particularly what the word “ expenses ” means, and whether it covers the expense of hiring an attorney.
The word “ expense ” means expenditure, outlay or disbursements of money. (12 Am. & Eng. Ency. of Law [2d ed.], 394; Century Dict.)
In Matter of Turrell (63 Misc. 502) the meaning of the term “ expense ” was discussed by Judge Wheeler, Justice of the Supreme Court, at Erie County Special Term. The statute under consideration in the Turrell case was not the same statute as the one under consideration in this case but was under a drainage act (Chap. 888, Laws of 1869, as amd. by Laws of 1901, chap. 523). Section 8 of that act provides that the commissioners “ shall keep an account of all their expenses and of all the costs and expenses incurred in draining said lands, including all the costs and expenses incurred in any proceedings under this act and preliminary or
Attorney for defendants quotes at length from the case of McQuhae v. Rey (3 Misc. 550). I do not see how that case is in point. That was a proceeding to compel a husband to provide for his wife’s support. The action was brought in the name of the People and was instituted and prosecuted by the commissioners of charities and corrections in the city of New York, " who for that purpose were exclusively represented by an assistant' cor
In this proceeding it is the petitioner that is asking for such expense under section 919 above referred to. Section 915 of the Code of Criminal Procedure provides: “If a relative of a poor person fail to relieve and maintain him, as provided in the last section, the overseers of the poor of the town where he is, or in the city of New York, * * * may apply * * * to the county court of any county where the poor person dwells, for an order to compel such relief.” The overseer of the town is the proper petitioner to whom costs and expenses are allowable under section 919.
In this case neither the town of Franklinville nor the overseer of the poor of that town has any attorney who is employed regularly upon a salary and to whom has been assigned the duty of prosecuting these proceedings or doing the legal work of the overseer. An attorney is employed merely when necessity arises. The petition and papers to bring these proceedings could not be properly drawn nor the hearing in court properly conducted without the employment of an attorney, especially where the defendants have so vigorously contested upon all points. In this case the employment of an attorney by the overseer was necessary, and the amount allowed reasonable. In addition to this proceeding to modify the order, there were two hearings besides several motions, the details of which appear in the court’s memorandum of August twenty-second above referred to, besides the time necessary for preparation of two briefs. On the first hearing the defendants did not appear in person or by attorney, except that the wife of one of the defendants appeared and gave a statement to the court in regard to the financial condition of her husband. The defendants paid no attention to the original order for a long time, and to enforce payment the petitioner was obliged to secure an
In cases where the town or overseer has no regularly employed attorney whose duties require him to conduct such proceedings, so that it becomes necessary to employ an attorney for that purpose, a reasonable charge for such attorney’s fees is a proper expense, under section 919 of the Code of Criminal Procedure.
From the additional evidence which has been furnished upon the hearing to resettle the former order, I have become convinced that the eighteen dollars which was disallowed as a part of the disbursements of the petitioner was actually paid and was necessary in the proper preparation and conduct of the proceeding, and that amount should be added to the expenses of the proceeding. An amended order should be made fixing the amount of expense for the necessary employment of attorney at seventy-five dollars, and for other miscellaneous disbursements forty-four dollars and thirty cents, making a total of one hundred and nineteen dollars and thirty cents, to be paid by the sons, the defendants in this proceeding, as follows, to wit: John McMurray, fifty-nine dollars and sixty-five cents; Sam McMurray, twenty-nine dollars and eighty-two cents; George McMurray, twenty-nine dollars and eighty-three cents, within twenty days after the entry of the order made upon this memorandum and the service of a copy thereof, with notice of entry upon the defendants’ attorney. The amended order should be settled upon notice to defendants’ attorney, with service of a copy of the petitioner’s affidavit of disbursements. In all other respects, the order entered in accordance with the court’s memorandumfof August 22, 1927, shall remain unchanged.