191 N.Y. 286 | NY | 1908
The question certified to this court is whether the appellant, John Knight, was entitled to an order from the justice presiding at the trial of this case fixing Knight's compensation for services rendered therein. The facts out of which this controversy arose are as follows: The defendant Neff, then county auditor of Erie county, had been indicted in that county in January, 1906, for the crime of grand larceny. Upon his application, in or about the month of June, 1906, the place of trial of the indictment was changed from Erie county to Wyoming county. The appellant Knight was then the district attorney of Wyoming county. With the approval of the county judge of Erie county, the district attorney of the latter county retained the appellant to assist him in the trial of the case. The trial was had in Wyoming county. The appellant and other local counsel assisted the Erie county district attorney in the trial although the Erie county district attorney practically took *288 charge of the trial and assumed the conduct thereof. Subsequent to the trial the appellant made this application to the justice who presided at the trial to have his compensation fixed for his services and disbursements. The learned trial justice denied the application solely upon the ground of lack of power and the Appellate Division has affirmed his determination.
The trial judge and the Appellate Division have favored us with opinions which, while differing in detail, agree that the rights and duties of district attorneys in respect to criminal prosecutions which have been removed from one county to another are involved in doubt and uncertainty. To some extent this uncertainty has been occasioned by the repeal of certain important provisions of the earlier statutes bearing upon the subject generally, and the failure to re-enact similar provisions. Until the adoption of the County Law in 1892 (Ch. 686), the Revised Statutes provided: "It shall be the duty of every district attorney to attend the courts of oyer and terminer and jail delivery, and general sessions, to be held from time to time, in the county for which he shall have been appointed; and to conduct all prosecutions for crimes and offenses cognizable in such courts." (1 R.S. 383, § 89.) This provision was repealed by the repealing clause of the County Law, and while certain sections of the Code of Criminal Procedure and other statutes prescribe the duties of district attorneys in special cases, there seems to be no existing statute declaring their general duties. The quoted section of the Revised Statutes, it will be observed, only related to certain specified courts of criminal jurisdiction. These were the Courts of Oyer and Terminer and General Sessions. By another section of the statute it was provided that when an indictment was removed by certiorari from the former Court of Oyer and Terminer into the Supreme Court, and by the latter court sent down for trial, it should be tried at the proper Circuit Court in the same manner as civil cases, "by the district attorney of the county in which the same was found." (2 R.S. 733, § 84.) This provision has also been repealed. (L. 1886, ch. 593, § 1, subd. 4, repealing R.S. art. 3, tit. 4, *289
ch. 2, part 4.) If this last-mentioned provision of the earlier statutes had remained in force, we should be inclined to hold that it was not the duty of the appellant to conduct this prosecution, and that it was solely the duty of the prosecuting officer of Erie county to do so. Logically it would seem to follow that if it was not within the scope of the appellant's duty to conduct the prosecution herein, he would be entitled to compensation, for a district attorney in this state has no common-law duties, but only such as are imposed upon him by statute. (People v. Corning,
So far as the appellant's claim in this proceeding is concerned, it does not matter what his duties were, for we are of opinion that the procedure followed conferred no jurisdiction upon the justice presiding at the trial to fix the amount of any compensation to the appellant. Section
It may be proper to observe in conclusion that while section
The order should be affirmed, without costs, and the question certified answered in the negative.
CULLEN, Ch. J., GRAY, HAIGHT, VANN, WILLARD BARTLETT and HISCOCK, JJ., concur.
Order affirmed. *291