71 N.Y.S. 127 | N.Y. Sup. Ct. | 1901
The relator, an attorney and counselor at law, was duly retained by the district attorney of Few 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 act of the Legislature, and whether that statute be section 2, chapter 733 of the Laws of 1872 (vol. 2, p. 1753) or section 2, chapter 323 of the Laws of 1874 (p. 387) is of no consequence. In substance, each of said provisions declares that the district attorney for any county, in which an important criminal case is to be tried, may, with the approval of the county judge, filed in the county •clerks’s office, employ counsel to 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 following, and for such services the relator duly presented a bill for $7,500, which was submitted for certification to Mr. Justice Fursman, 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 bill, his contention being that the charge was excessive. The relator, therefore, applies for a mándamus to compel payment of the sum certified. It seems to be objected that the act relied on was repealed by the County Law (L. 1892, ch. 686). But section 1 of the last-named statute expressly provides that is shall not apply to the county of Few York. So that the former statute applicable to the county of Few York in the respect named
Writ granted, with costs.