
    Supreme Court—Appellate Division—First Department.
    June, 1903.
    MATTER OF PHILIP WALDHEIMER.
    (84 App. Div. 366.)
    Attorney—Allowance for Expense in Defending Person Accused of Murder—Code Grim. Proc., Section 308.
    The employment of additional counsel, by a lawyer assigned to the defense of a person accused of murder, for the purpose of investigating 7. witnesses, is not within the meaning of the words “personal and incidental ” expenses as used in section 308, Code Criminal Procedure.
    Laugulin, J., dissenting.
    Appeal by Edward M. Grout, as comptroller of the city of New York, from an 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, 1003, directing that a peremptory writ of mandamus issue directing said appellant to pay to the respondents herein a. certain sum for incidental expenses incurred by them in defending a prisoner charged with murder in the first degree'.
    Theodore Connoly, for the appellant.
    Charles Simon, for the respondents.
   Hatch, J.:

It. appears-by-the petition im this proceeding ■ that the relators were appointed.and assigned to defend, in the .Court of General Sessions of the-Peace in and for the county of Hew 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 $90. 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 allowance, pursuant to the provisions of section 308 of the Code of Criminal Procedure; that the judge so presiding fixed the sum of $500 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 $90- was reasonable compensation for personal and incidental expenses of counsel. The relators p-re.'sented the order and the certificate to the comptroller of the city of Hew York and demanded payment thereof. The comp- ' troller paid the allowance of $500 as compensation, but refused to pay the allowance of $90 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 $5. There are eighteen items in all, amounting in the aggregate to- the sum of $90. •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 laAvyers asr signed 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 for in 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 Avrit of mandamus requiring the ■ comptroller to allow counsel compensation for expert Avitnesses as to handwriting, who were sworn upon the trial of an indictment charging murder in the first degree. The court beloAV having granted a mandamus directing the payment of the expenses so incurred, this court-, in reversing that order, through Hr. Justice Patterson, said: “The relators seek to sustain the allowance for witness charges upon the ground that they are incidental expenses. They were undoubtedly expenses of a trial, such as would ordinarily be borne by a party to an action. The personal ánd incidental expenses for the payment of which provision is made are such as relate to those incurred by counsel on his personal account. The Avord 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 malee 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 'within 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 ivas essential and necessary for the counsel in the case Avhicli Ave have cited to obtain the attendance of expert Avitnesses, Avhicli he could only procure by making compensation, yet the court held such expense Avas not embraced Avithin the Code provisions and could not be allowed. These expenses fall in the same category and, therefore, the result must be the same.

It folloAvs that the order appealed from should be reversed, Avith $10 costs and disbursements, and the application dismissed.

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

Order reversed, with $10 costs and disbursements, and application dismissed.  