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1899]

People v. Coler.

troller 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 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 de

COMPENSATION OF ASSIGNED COUNSEL,-continued.

Criminal Procedure, as amended in 1897, the Court of Appeals fixes the time for execution without remitting the case to the trial court. This was the situation in the principal case, but the point that the Supreme Court had no jurisdiction to entertain the application for an allowance for services rendered on the appeal is not noticed by the court.

Prior to the amendment of 1893 to § 308 of the Code of Criminal Procedure, counsel assigned to defend even a capital prisoner was not entitled to compensation for his services from the county.

The first case in which such a claim was sought to be enforced was People v. Supervisors of Albany County, 28 How. Pr. 22, in which the relator's right to a mandamus to compel the Board of Supervisors to audit his claim for such services was denied. This case was prior to the enactment of the Code of Criminal Procedure and when there was no statute authorizing the assignment of counsel. The decision rested somewhat on that lack of statutory authority for such assignment.

However, in People v. Onondaga County Sup'rs, 3 How. Pr. N. S. 1; 4 Crim. R. 102, which was after the Code of Criminal Procedure had authorized assignment of counsel, such counsel was again denied the right to compensation from the county, and it was held that the provision for assignment of counsel in § 308 of the Code of Criminal Procedure was merely the

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nied, 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 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 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.

COMPENSATION OF ASSIGNED COUNSEL,—continued.

expression of the previous common law and was not the basis of a claim for compensation by assigned counsel.

This case was affirmed by the General Term (4 Crim. Rep. 102) and by the Court of Appeals (102 N. Y. 691) on the opinion of Vann, J., at Special Term.

In People v. Erie County Supervisors, 1 Sheldon, 517, the relator had procured an act of the legislature authorizing the Board of Supervisors to audit and pay his disbursements in defending a capital case as assigned counsel. It was conceded that without such statute no recovery could be had. The constitutionality of the statute was assailed but the court held that the legislature could order the Board of Supervisors to pay such a claim.

In People v. Willett, 1 How. Pr. N. S. 196; 3 N. Y. Cr. Rep. 54, upon motion of assigned counsel, a copy of the stenographer's minutes was ordered for the use of such counsel in the prosecution of an appeal, to be furnished at the expense of the county. Westbrook, J., deemed that the absolute right to review by appeal in capital cases and to a stay, pending hearing thereof, implied that assigned counsel be furnished with the necessary means of preparing for the argument of the appeal.

b. In actions in forma pauperis.

An attorney assigned to prosecute a civil action in forma pauperis must act without compensation, other than taxable costs.

Code of Civil Procedure, § 460.

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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 desires the aid of counsel and if he does, the court must assign counsel. When services are rendered 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 $500, which allowance shall be a charge upon the county in which the indictment 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

COMPENSATION OF ASSIGNED COUNSEL,-continued.

Costs awarded in favor of a person, who has been admitted to prosecute or defend as a poor person must be paid over to his attorney, when collected from the adverse party, and distributed among attorney and counsel assigned to the poor person as the court directs.

Section 467, Code of Civil Procedure.

A defendant may defend as a poor person in an action involving his right, title or interest in or to real or personal property (§ 463 Code of Civil Procedure) and although there is no express provision that the attorney assigned to defend shall act without compensation, still § 465 and § 467 of the Code of Civil Procedure are intended to put the attorney defending on the same footing as the attorney prosecuting.

The court is not required to assign the attorney nominated by the party applying to prosecute as a poor person.

Helmprecht v. Bowen, 87 Hun, 362; 34 Supp. 1141.

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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, 85 St. Rep. 685; 51 N. Y. Supp. 685, 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

COMPENSATION OF ASSIGNED COUNSEL,-continued.

It seems, that the attorney proposed to be assigned to prosecute an action in forma pauperis must agree to act without compensation and such agreement must appear in the papers on which the application is made.

Helmprecht v. Bowen, 87 Hun, 362; 34 Supp. 1141.

An attorney assigned to prosecute an action in forma pauperis cannot enforce an agreement made with the plaintiff for a share of the recovery. Matter of Kelly, 12 Daly, 110.

In this case the costs to which the attorney must look for his compensation were set off against costs recovered against the plaintiff in a former action for the same cause, but it was held that the entire recovery belonged to the plaintiff by reason of an agreement of the attorney to pay the expenses of prosecuting the claim entered into before the first action was commenced, which was not in forma pauperis, such costs being part of the expenses which the attorney agreed to pay.

1899]

Steamship Richmond Hill Co., Limited v. Seager.

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 $10 costs and disbursements. All concur.

STEAMSHIP RICHMOND HILL CO. Limited v. SEAGER et al.

[160 N. Y. 312; 54 N. E. 574.]

(Court of Appeals, Oct. 3, 1899.)

1. APPEAL TO Court of APPEALS-LEAVE-RETROACTION.

The Constitution, Art. 6, § 9, provides that appeals may be taken to the Court of Appeals, as of right, only from judgments or orders entered on decisions of the Appellate Division finally determining actions or proceedings, but that the Appellate Division may allow an appeal on

TIME TO APPEAL TO COURT OF APPEALS.

a. In general.

b. How limited.

a. In general.

In so far as the principal case establishes the rule that an appeal from an intermediate order can be taken to the Court of Appeals more than sixty days after service thereof with notice of entry by reason of the inability of the appellant to get the necessary leave from the Appellate Division within that period, it seems to be judicial legislation and in conflict with § 784 of the Code of Civil Procedure. That section provides that one of the things for doing which the time cannot be extended by a court or judge is the taking of an appeal and “A court or judge cannot allow either of those things to be done, after the expiration of the time fixed by law,” except in the event of the death of the party entitled to appeal before the expiration of the time for appealing.

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