
    Supreme Court—Appellate Division—Second Department.
    May, 1901.
    THE PEOPLE EX REL. MULLEN v. BIRD S. COLER
    (61 App. Div. 538; 104 St. Rep. 639.)
    1. Counsel—Allowance to on trial for murder—Code Crim. Pro., § 308.
    The court has no power under Code Crim. Pro., § 308, to make an allowance to attorney assigned to defend a prisoner charged with murder in the first degree where, after the assignment, a commission appointed under § 658 Code Crim. Pro., finds defendant insane and he is. committed to the State hospital.
    2. Same^.
    If defendant becomes sane and is brought to trial upon the same indictment, the court in which he is tried, if the action or indictment is not otherwise disposed of, may then allow his counsel their expenses and compensation for the services to be paid upon the certificate of the judge presiding at the trial!
    Appeal by the relators, William M. Mullen and another, from an order of the supreme court, made at the Kings county special term and entered in the office of the clerk of the county of Richmond on the 24th day of January, 1901, denying the relators’ application for a peremptory writ of mandamus.
    William M. Mullen and Frederick S. Mullen, appellants, in person.
    William J. Carr [Luke D. Stapleton with him on the brief], for the respondent.
   Sewell, J.

This is an appeal from an order denying an application for a writ of mandamus to compel the comptroller of the city of New York to audit, allow and pay the claim of the relators for services rendered and disbursements made in the defense of one William Fitzpatrick, who was indicted for the crime of murder in the first degree. When the defendant was arraigned the relators were assigned to defend him. After the assignment the defendant pleaded “ not guilty ” to the indictment, with a specification of “ insanity ” thereto. A commission was appointed, under the provisions of section 658 of the Code of Criminal Procedure, to examine the defendant and to report to the court as to his sanity at the time the crime was committed, and also at the time of the examination. The commissioners found that the defendant was insane at the time of the commission of the crime and at the time of the examination. The report was confirmed' and the court ordered that the defendant be committed “ to the Hudson River State Hospital,” at Poughkeepsie, to be “ there detained until such time as he may become sane, when he is to be redelivered by the superintendent of the said asylum to the sheriff of Richmond county.” The court in the said order certified and allowed to the relators for their services as counsel for the defendant $500, and $50 the aggregate amount of their incidental and personal expenses in the defense of the accused.

The comptroller of the city of New York refused to recognize the certificate or pay the amount, claiming that the court had no power to make an allowance to the relators as the defendant had not been tried or the action or the indictment otherwise disposed of.

The only authority for an allowance to counsel assigned to defend a prisoner is section 308 of the Code of. Criminal Procedure, which provides that “ 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, 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, to be paid out of the court fund upon the certificate of the judge or justice presiding at the trial or otherwise disposing of the indictment.”

In People v. Coler, 7 N. Y. Ann. Cas. 120; S. C., sub nom. People ex rel. Czaki v. Coler, 44 App. Div. 183, and People v. Heiselbetz, 30 id. 199, the court held that the limitation of the sum of $500 is for services extending through the whole case and in all of its stages, and that there is no authority to grant more than $500 and expenses to counsel, regardless of the number assigned, who conducts the defense at the trial and argues the appeal.' It is perfectly clear, therefore, that the comptroller was justified in treating the allowance and certificate as a nullity, if the inquiry into the insanity of the defendant was not a trial or did not dispose of the action or indictment. It is quite obvious that the proceeding of the commissioners formed no part of the trial of the issue joined by the plea of the defendant to the indictment. That issue must be tried by a jury. Code Crim. Proc. §§ 354, 355; Cancemi v. People, 18 N. Y. 128. The only effect of the proceeding was to suspend the trial until the defendant becomes sane. Code Crim. Proc. § 659; People v. Haight, 13 Abb. N. C. 197; People v. McElvaine, 125 N. Y. 596. When the defendant becomes sane he must be redelivered to the sheriff and brought to trial upon the same indictment. Code Crim. Proc. § 661. The court in which he is tried, if the action or indictment is not otherwise disposed of, may then allow his counsel their expenses and compensation for their services, to be paid upon the certificate of the judge or justicé presiding at the trial.

There was no authority for the award, and the comptroller was justified in refusing the payment.

The order should be affirmed, without costs.

All concurred.

Order affirmed, without costs.  