
    Supreme Court—Appellate Division—Second Department.
    May 7, 1898.
    PEOPLE v. CONRAD HEISELBETZ.
    1. Criminal law—Allowance to counsel.
    Legislature intended to limited the aggregate ainount to be allowed to counsel assigned by the court to defend a person indicted for an offense punishable by death to the sum of $500, regardless of the number of counsel assigned, and also to allow the personal and incidental expenses of the counsel.
    2. Appeal—Certificate awarding compensation to counsel.
    There is no authority for an appeal to the appellate division from the certificate of the justice presiding at the trial awarding compensation to counsel under section 808 of Criminal Code.
    Appeal from an order denying a motion to modify a certificate of a justice certifying compensation for services of counsel assigned to defend a prisoner.
    Almet F. Jenks, for the People.
    Wm. M. Mullen and Sixt Carl Kapff, for respondent.
   Goodrich, P. J.

The certificate in question was made pursuant to section 308 of the Code of Criminal Procedure by the earned justice who denied the application to modify the same, [t certified that he had allowed William M. Mullen, Esq., compensation for his services as counsel for the defendant, Heiselpetz, who had been indicted for murder, in the sum of $500, md also compensation to Sixt Carl Kapff, Esq., for similar services, in the sum of $500, and the further sum of $198.70 for the aggregate amount of their individual and personal expenses. The certificate ordered and directed the comptroller of the city of Mew York to issue warrants for such amounts. The question presented is whether the section in question confers any power on the court to make an allowance to counsel thus assigned of more than $500 in the aggregate. Section 308 was originally enacted in 1881 (Laws 1881, c. 442), and provides:

“ 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.”

This was amended by chapter 521, Laws 1893, by adding:

“ When services are rendered by counsel in pursuance of such assignment in a case where the offense charged in the indictment is punishable by death the court in which the defendant'is tried may, in its discretion, and upon satisfactory proof that defend ant is wholly destitute of means, award to such counsel reason able compensation for his services which shall be a charge upoi the county in which the indictment in the action is found, to b< paid out of the proper fund upon the certificate of the judge o justice presiding at the trial.”

This section was further amended by chapter 427, Laws 1897 so as to read as follows :

“ Sec. 308. * * * If the defendant appear for arraign ment without counsel, he must be asked if he desires the aid o counsel, and if he does the court must assign counsel. Whe services are rendered by counsel in pursuance of such assigi ment in a case where the offense charged in the indictment i punishable by death or on an appeal from a judgment of deatl the court in which the defendant is tried or the action or indie ment is otherwise disposed of, or by which the appeal is finall determined, may allow such counsel his personal and incidente expenses upon a verified statement thereof being filed with tb clerk of such court, and also reasonable compensation for h services in such court, not exceeding the sum of five hundre dollars, which allowance shall be a charge upon the county i which the indictment in the action is found, to be paid out the court fund, upon the certificate of the judge or justice pr siding at the trial or otherwise disposing of the indictment, or upon the certificate of the appellate court, but no such allowance shall be made unless an affidavit is filed with the clerk of the county by or on behalf of the defendant, showing that he is-wholly destitute of means.

The progressive character of these amendments throws light upon the intention of the legislature in enacting the last amend.ment of the section. The first act provided simply for the assignment of counsel to a defendant in criminal proceedings¡ The first amendment authorized the court, in case of an indigent defendant, to assign counsel, and award reasonable compensation for his services, while the last amendment limited the amount of the compensation to §500. It seems to me that the last amendment was intended as a limitation upon the aggregate amount which should he paid for the defense of an indigent prisoner.

The only authority to which we are cited is the opinion of | Mr. Justice Bookman in People v. Fitch (Sup.) 51 N. Y. Supp. 683. This case was decided intermediate the first and second I amendments of the section. The learned justice held that the statute imposed no limitation upon the number of counsel who I might be assigned by the court, and with this decision we are I disposed to agree. In the present proceeding the learned justice I in his opinion held that there is no limitation of the aggregate lamount of counsel fees to the sum of §500, but that the court Imight award to each counsel assigned a sum not exceeding 1$500. I think that this was an erroneous view of the statute, lit is not necessary to consider the use in the section of the singular pronoun “ his,” in reference to the counsel thus assigned, for pe statutory construction law (Laws 1892, c. 677) declares that rords in the singular number include the plural, and words in |the plural include the singular. The word “ counsel,” etymologically considered, includes one or more counsel, but this does hot affect the question of limitation of amount of compensation. Phe real question is whether the legislature intended to limit Jhe aggregate amount to be allowed to counsel; and I think it ras the manifest intention of that body to limit it to the sum of regardless of the number of counsel assigned, and also to allow the personal and incidental expenses of the counsel. The court may apportion the $500 between counsel, for the purpose of giving, not adequate compensation, but reasonable compensation, within the limitation of the statute. It certainly was not in the contemplation of the legislature that an unlimited number of counsel could be assigned, and $500 set apart for each of them. This whole method is a new feature in criminal procedure, and it must be reasonably interpreted.

But my associates, while concurring with me as to the illegality of the certificate and order appealed from, are of opinion that such certificate and order should be treated as a nullity, and that, as there is no authority for an appeal in a criminal case except when provided by statute, the appeal should be dismissed; without costs. All concur.

Willard Bartlett, J.

I concur with the presiding justice upon the merits of the question discussed in his opinion, but I think that no appeal lies from a certificate made under section 308 of the Code of Criminal Procedure.

Cullen, J.

I agree in the opinion of Mr. Justice Goodrich that the amounts allowed to all counsel for the defendant in a capital case, under section 308 of the Code of Criminal Procedure, cannot exceed in the aggregate the sum of $500. I agree with Mr. Justice BARTLETT'that there is no authority for an appeal to this division from the certificate of the justice presiding at the trial awarding compensation to counsel. If the award is in excess of the amount allowed by law, the comptroller should refuse payment and resist any proceedings taken to enforce it. Had the trial justice, therefore, confined himself to the certificate provided in section 308, this appeal should be dismissed ; but the justice assumed to go further, and not only certified the award for counsel, but ordered the comptroller to pay the amount so certified. There is no authority for such an order. When the amount certified is in accordance with law, it is made a county charge, and its payment must be enforced the same as any other county charge; but the justice who grants the certificate has no power to summarily enforce the payment of the sum awarded.  