Opinion
November Term, 1899.
A.H. Hummel, for the appellant.
Theodore Connoly, for the respondent.
This is an appeal from an order denying the relator's application for a writ of mandamus to compel the comptroller of the city of New York to pay certain moneys to which the relator, as assignee of Mr. Ambrose H. Purdy, an attorney at law, claims to be entitled under an order made by one of the justices of the Supreme Court under the following circumstances:
One Michael McDonald was brought to trial upon an indictment for the crime of murder in the first degree. Mr. Purdy was assigned as counsel to defend him. The trial resulted in a conviction, and upon a proper presentation of the necessary facts, the justice presiding at the trial made a certificate authorized by law and allowed to Mr. Purdy the sum of $500 as counsel fee for defending his client on the trial, and an additional allowance for expenses incurred in the defense of the action, and the aggregate amount was paid to Mr. Purdy by the comptroller of the city of New York. McDonald desiring to appeal to the Court of Appeals from the judgment of conviction, made an application to the court to have other counsel assigned him and substituted for Mr. Purdy, which application was denied, and Mr. Purdy was continued as counsel and argued the appeal in the Court of Appeals. The conviction was affirmed, and on the 7th of June, 1899, the justice of the Supreme Court before whom the trial was had made an order allowing to Mr. Purdy another sum of $500 "as compensation for his services in this court rendered to the said defendant in an appeal to the Court of Appeals from the conviction of murder in the first degree, in pursuance to an order assigning him as counsel to the said defendant Michael McDonald." An additional sum for expenses was also awarded, and it was directed that the amount of such compensation and expenses be a charge upon the city of New York, and that the comptroller of the city of New York, out of the proper funds, should pay the amount to Mr. Purdy. The comptroller declined to do so, whereupon the application for a mandamus was made.
The authority to allow compensation to Mr. Purdy for his services in the McDonald case is to be found in section 308 of the Code of Criminal Procedure, as amended by chapter 427 of the Laws of 1897, by which it is enacted that "If the defendant appear for arraignment without counsel, he must be asked if he desire the aid of counsel, and if he does, the court must assign counsel. When services are rendered by counsel * * * in a case where the offense charged in the indictment is punishable by death, or on an appeal from a judgment of death, the court in which the defendant is tried, or the action or indictment is otherwise disposed of, or by which the appeal is finally determined, may allow such counsel his personal and incidental expenses upon a verified statement thereof being filed with the clerk of such court, and also reasonable compensation for his services in such court, not exceeding the sum of five hundred dollars, which allowance shall be a charge upon the county in which the indictment in the action is found."
As we construe this section, we think the intention was to limit the aggregate compensation of counsel, continuously employed in the case, to the sum of $500. The section refers to services rendered by counsel in pursuance of an assignment in a case where the offense charged in the indictment is punishable by death, or on appeal from a judgment of death. Mr. Purdy was not in any proper sense reassigned so as to give him the status of newly employed counsel on the appeal. The trial court or the appellate court might allow expenses and a reasonable compensation not exceeding $500. The statute does not specifically state that there shall be an allowance for a trial and another allowance for an appeal to the same counsel. Manifestly, the sum of $500 was intended originally as the maximum of the amount that might be allowed. In People v. Heiselbetz ( 30 App. Div. 200) the course of legislation respecting the provision of law now under consideration is given, and from that the conclusion was deduced that the last amendment was intended as a limitation upon the aggregate amount which should be paid for the defense of an indigent prisoner in a capital case. In the case cited, the question was as to the allowance of $500 to each of more than one counsel. The question arising here was not presented of an allowance to the extent of $500 being made to the same counsel, both upon a trial and upon an appeal; but we are of opinion that the limitation of the sum of $500 is for services extending through the whole case and in all its stages, and that there is no authority to grant more than $500 and expenses to the counsel who conducts the defense at the trial and argues the appeal. Counsel is assigned to "aid" the defendant; that is, to see that he is protected in his rights. No limitation of the service to be rendered is made by the statute, but when pursuant to the assignment it is rendered either in the court of original jurisdiction or on appeal, or both, it may be compensated in a sum not exceeding the amount fixed by the statute.
As the new appointment was unnecessary, it cannot be made the pretext for the allowance of double fees. Actual expenses may be allowed under the original appointment, but nothing more.
The order appealed from was correct and should be affirmed, with ten dollars costs and disbursements.
VAN BRUNT, P.J., O'BRIEN, INGRAHAM and McLAUGHLIN, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.