People v. Abbandando , 36 N.Y.S.2d 1 ( 1942 )

Motion referred . to the court that rendered the decision. Present — Lazansky, P. J., Hagarty, Carswell, Adel and Taylor, JJ. Motion for reargument granted, and upon reargument the decision of this court handed down April 27, 1942 (People v. Abbandando, 264 App. Div. 741), is amended to read as follows: Appeal by the People from an order of the County Court, Kings County, in so far as it fixes compensation of respondent, as a material witness, under section 618-b of the Code of Criminal Procedure, during the time of his detention. Order, in so far as appealed from, affirmed. On reargument the court is of opinion that the order is appealable. (People v. Williams, 246 N. Y. 621, decided “ on the authority of People v. Young [92 Hun, 373; affd., 151 N. Y. 651].”) In the Young case the appeal was by sureties from an order denying their motion for a remission, in part, of the forfeiture of a bail bond. (Code Crim. Proc. §§ 597, 598.) The motion was made in the Criminal Court which declared the forfeiture. It was held that the order was appealable as an order made in a civil special proceeding, under the provisions of the then section 1357 of the Code of Civil Procedure, ,the substance of which is now embodied in section 631 of the Civil Practice Act. The same rule is now applied here. However, the papers submitted in support of and in opposition to the motion to fix compensation justify the granting of the motion in the fair exercise of discretion. The court may not consider facts which are not presented in the affidavits. Lazansky, P. J., Carswell, Johnston, Adel and Taylor, JJ., concur.