
    In the Matter of James M. Byrnes, Respondent, v County of Monroe, Appellant. The People of the State of New York, Plaintiff, v Cheryl Dettmen, Defendant.
   — Order of Monroe County Court and judgment of City Court of the City of Rochester unanimously reversed, on the law, without costs, and petition dismissed. Memorandum: The County of Monroe, pursuant to CPLR 5703 (b), appeals from an order of Monroe County Court which affirmed a judgment of Rochester City Court declaring 22 NYCRR 1022.12 (b) unconstitutional and in conflict with County Law § 722-b and granting petitioner judgment against the county for $993 plus interest for assigned counsel fees in excess of the statutory limit. Petitioner was assigned to represent a defendant in Rochester City Court on two misdemeanor charges. Petitioner applied to the Trial Judge for counsel fees in excess of the statutory limit, alleging that he spent extraordinary amounts of time and legal research in preparing for and conducting the trial. The Trial Judge granted the application and ordered the Monroe County Director of Finance to pay petitioner as requested. The county refused to do so until petitioner obtained the approval of the Supervising Judge of Criminal Courts as required by 22 NYCRR 1022.12 (b). Petitioner then moved before the Trial Judge for enforcement of the order previously made. The Trial Judge granted the request and declared the rule unconstitutional because it was inconsistent with State-wide procedure as provided in County Law § 722-b (128 Misc 2d 700, 710).

The relief which petitioner seeks is in the nature of mandamus to compel a public officer to perform a duty enjoined upon him by law (CPLR 7803 [1]; 7802 [a]), or a declaratory judgment that rule 1022.12 (b) is unconstitutional on its face, actions which, in either case, must be commenced in Supreme Court (CPLR 7804 [b]; 3001). Thus, Rochester City Court had no subject matter jurisdiction to entertain petitioner’s order to show cause and, accordingly, the order must be reversed (Lacks v Lacks, 41 NY2d 71, 75). We decide no other issue. (Appeal from order of Monroe County Court, Egan, J. — assigned counsel fees.) Present — Doerr, J. P., Boomer, Green, Pine and Lawton, JJ.  