People ex rel. Peck v. Board of Supervisors

Adams, P. J.:

The relator bases his right to maintain this proceeding upon the provisions of section 204 of the County Law (Laws of 1892, chap. 686), which reads as follows: “ The district attorney of any county in which a capital or other important criminal action is to be tried, with the approval in writing of the county judge of the county, which shall be filed in the office of the county clerk, may employ ■ counsel to assist him on such trial, and the costs and expenses thereof, to be certified by the judge presiding at the trial, shall be a charge upon the county in which the indictment is found.”

It is contended that although this section, when strictly construed, provides only for the employment and payment of counsel who may be designated to assist a district attorney upon the trial of “ a capital or other important criminal action,” yet, inasmuch as the services rendered and charged for by the relator were in a sense incidental. to the trial, they properly come within its scope and spirit. .

The question thus raised is certainly presented with no little force and ingenuity, but it is one which, in the view we take of the case, does not require any consideration at the present time, inasmuch as we are of the opinion that in no event can the relator maintain this proceeding.

The statute upon which the relator rests his contention requires as a condition of charging the costs and expenses of counsel designated to assist a district attorney upon the -county that the same shall first “ be certified by the judge presiding at the trial.” The plain • purpose of this provision, it seems to us, is to secure the approval of a judge who would know better than any one else the nature and value of the services rendered, and this being so, we do not see how it can be said that the judge who presided at the second trial was qualified to certify as to the services which had theretofore been rendered before other judges and in proceedings which may have involved quite different questions from those' litigated upon the second trial.'

If the relator is correct in his contention that the appeal to the Court of Appeals and the motion at Special Term were incidental to, and a continuation of, the first trial, ■ as to which we express no opinion, we think that within the plain intent and meaning of the statute the judge who presided at the first trial is the only one who has any power to certify the costs and expenses of those proceedings, and this being so, it necessarily follows that the relator’s writ'should be dismissed.

All concurred.

Writ of certiorari dismissed, with ten dollars costs and disbursements.