
    In the Matter of the Application of Philip Waldheimer and John F. Cowan, Respondents, for a Writ of Peremptory Mandamus Directed to Edward M. Grout, as Comptroller of the City of New York, Appellant.
    ■ Personal and incidental” expense under section 808 of the Code, of Criminal'Procedure— the cost of having witnesses.looked up, etc., is not.
    
    The cost- incurred.1 in. having a person look up witnesses, take their'statements, and marshal thé- evidence for "use upon a murder trial, does not constitute, a ■ “ personal and incidental ” expense within the meaning of section 308 of the Code of Criminal Procedure, authorizing, attorneys, assigned to defend a ' prisoner charged with the crime-bf murder, to be allowed their “ personal- and incidéntal ” expenses in addition to the compensation awarded to them by the court. . :
    Laughlin, J:„ dissented;
    ' Appeal by Edward M. Grout, ah comptroller of the city of New York, from, ah: order of the Supreme Court, made at the New York Special Term and' entered in the office of the clerk of the county of New York on the 18th day of March, 1903, directing that a peremptory writ of maiidamns issue directing said appellant to pay to the flesp'ondents herein a certain sum for incidental'expenses incurred by them in defending a prisoner charged with murder- in the first degree. ■' '
    
      Theodore (Jonnol/y, for the appellant.'.
    
      Charles Simon, for the respondents.
   Hatch, J.:

. It appears by- the petition, in this proceeding -that the rélátórs were; appointed and assigned to defend, in the Court of General Sessions of the Peace in and for the county of New York,, one George Slater, who was under indictment charged with the crime of murder in the first degree, pursuant to the provisions of section 308 of the Code of Criminal Procedure; that the counsel, so appointed and assigned, incurred .incidental expenses for services in the sum of ninety dollars. After rendition of the service under the assignment and the incurring of the expenses, the relators applied to a judge of the Court of General Sessions of the Peace for an allowanee, pursuant to the provisions of section 308 of the Code of Criminal Procedure; that the judge so presiding fixed the sum of five hundred dollars as reasonable compensation for the service and directed an order to be entered to that effect. The court also granted its certificate that the sum of ninety dollars was reasonable compensation for personal and incidental expenses of counsel. The relators presented the order and the certificate to the comptroller of the city of New York and demanded payment thereof. The comptroller paid the allowance of five hundred dollars as compensation, but refused to pay the allowance of ninety ■ dollars for personal and incidental expenses. Upon such refusal the relators made application for a writ of mandamus, which was granted, and from the order entered thereon granting the same the defendant appeals.

The bill for incidental services and expenses is set out in the petition and made a part thereof. It appears therefrom that services were performed by one Charles Simon, an attorney and counselor at law, under employment by the relators to investigate and confer with various persons, who are referred to in detail in the account, and take their statements concerning the transaction, the subject of investigation upon the trial. From the bill it appears that under specified dates for each specified act Simon made a uniform charge of five dollars. There are eighteen items in all, amounting in the aggregate to the sum of ninety dollars. Each item is for conference with persons therein named, taking statement, etc., except one, which is a charge for preparing a diagram of the premises where the alleged crime was committed. The charge for this item is the same as for the others. This service constitutes the incidental expense incurred by the relators and for which the judge has granted his certificate. It is evident from the bill that Simon was employed to look up witnesses and see to the marshalling of evidence for use upon the trial. A case is, therefore, -presented where lawyers assigned to the defense have employed another lawyer to aid them in gathering testimony for use upon the trial, and it is sought to bring this service within the meaning of “ personal and incidental expenses,” provided form section 308 of the Code of Criminal Procedure. It is evident that such expenses are not within the Code provisions. This question was authoritatively determined in People ex rel. Cantwell v. Coler (61 App. Div. 598; affd. on appeal on opinion below, 168 N. Y. 643). Therein the application was for a writ of mandamus requiring the comptroller to allow counsel compensation for expert witnesses as to handwriting, who were sworn upon the trial of an, indictment charging murder in the first degree. The court below having granted a mandamus directing the payment of the expenses so incurred, this court, in reversing that order, through Mr. Justice Patterson, said.':. “ The relators seek to sustain the allowance for witness charges upon the ground that they aré incidental expenses. They were undoubtedly expenses of a trial, such as would ordinarily be borne by a party to an action.' The personal and incidental expenses for the payment of which provision is made are such as relate to. those incurred by counsel on. his personal account. The. word 6 incidental,’ as used in the statute, is associated with the word ‘personal,’ and is used conjunctively. It does not confer authority upon the . counsel to make contracts of a special character involving a large liability to' be cast upon, .the county, for by the section of the Code cited the compensation and the personal and incidental expenses of counsel are made a county charge. The word ‘ incidental,’ as used in the statute, must be construed in accordance with its ordinary meaning, which is : ‘ Of minor importance, occasional, casual, as incidental expenses ; ’ ‘ something subordinate or casual; often used in the plural to mean minor expenses ’ (Century Diet.) We cannot construe this section of the Code as so enlarging the meaning of the word‘ incidental’as to give authority for the allowance as a county charge of such items' of expenditure as those now claimed by the relators.”

- This language is decisive of the present case and condemns the allowance which has been-made. The employment of • additional counsel for the purpose of investigating witnesses is not withiri the meaning of the words “ personal and incidental- expenses,” as used in the Code. It may be that the relators were necessarily obliged, in the proper conduct of the case, to employ an attorney to consult with ¡persons in order to learn whether their knowledge would be beneficial to the prisoner upon the trial. So, also, it was essential and necessary for the counsel in the case which we have cited to obtain the attendance of expert witnesses, which he could only procure by making compensation, yet the court held such expense was not embraced within the Code provisions and could not be allowed. These expenses fall in the same category and, therefore, the result must be the same.

It follows that the order appealed from should be reversed, with ten dollars costs and disbursements, and the application dismissed.

Patterson, O’Brien and Ingraham, JJ., concurred; Laughlin, J., dissented.

Order reversed, with ten dollars costs and disbursements, and application dismissed.  