People v. Sutherland ( 1911 )

Jenks, P. J. (concurring):

I concur upon the last ground stated in the opinion. In the case cited by Rich, J. (Bank of Staten Island v. Gity of New York, 68 App., Div. 231), the 3d paragraph of the head note reads: “In such a case the alloivance of the improper items constitutes an error of judgment and not a defect of jurisdiction. ” Doubtless this is formulated upon the final paragraph of the opinion of the court written by Woodward, J. Bartlett, J., and I, as appears in the report (68 App, Div. 239), dissented “ on the ground that some of the items included in the coroner’s bill are so clearly unlawful that they could not he legalized by any audit.” The judgment in that case was affirmed by the Court of Appeals (174 N. Y. 519). Although there is some distinction to be made between the Bank of Staten Island Case (supra) and the case at bar, I think that the proposition, which now moves me to this concurrence, was presented; that in any event it was germane and was accentuated by the said dissent. For this reason I feel hound to concur with Rich, J., in this case without consideration of the alleged illegality of the items in question.

Judgment affirmed, with costs.