#### The People of the State of New York ex rel. Frederick N. Van Zandt and Others, Composing the Firm of Howell Brothers, Respondents, *v.*William A. Prendergast, as Comptroller of the City of New York, Appellant.

Second Department,

June 27, 1913.

Crime — murder — expenses of attorney assigned to defend poor person, when not county charge.

A claim by an attorney, assigned to defend a poor person indicted for murder in the first degree, for moneys expended in the employment of specialists before trial, for a copy of the testimony taken at the coroner’s inquest which it does not appear was necessarily used upon the trial, and for the railroad expenses of certain witnesses consulted prior to, but not called at the trial, should not be allowed by the county as 11 personal and incidental expenses ” of counsel.

Appeal by the defendant, William A. Prendergast, as comptroller, etc., 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 Kings on the 17th day of April, 1913; granting an application for a peremptory writ of mandamus.

*James D. Bell [Charles J. Druhan*and *Archibald R. Watson*with him on the brief], for the appellant.

*Frederick N. Van Zandt,*for the respondents.

*487Burr, J.:

In September, 1912, relators were assigned to defend a prisoner who had been indicted for murder in the first degree. So successful were then’ efforts that, after a trial lasting two days, the defendant was acquitted. The justice presiding over the court in which the action was tried allowed to the relators $500 as counsel fee, and certain amounts, hereinafter specified, as “personal and incidental expenses.” (Code Crim. Proc. § 308.) . The comptroller of the city of New York refused to pay the latter amounts, and from an order granting a motion for a peremptory writ of mandamus, directing payment thereof, he now appeals to this court.

The items in dispute are stated as follows:

> “ 1. For the employ of professional men before trial to furnish counsel with proper and scientific information concerning the condition of the defendant’s mind, so that they might .be able to decide upon and establish such defense as might be fairly offered and

> upheld in her behalf............................. $100 00

> “ 2. For a copy of the testimony taken at the coroner’s inquest at the examination of Sarah Sypher and witnesses....................................... 2 50

> “ 3. For car fare for John E. Walker, a necessary witness, residing at Medford Station, Long Island, to defray his railroad expenses in coming to relators’ office in Brooklyn before the trial to assist relators

> in preparation for trial.......................... 3 00

> ‘4. For car fare for Susan Hoelper, a necessary witness, residing at Franklinville, New Jersey, four hundred miles from New York City, to defray her 'railroad expenses in coming to relators’ office in Brooklyn ' twice before the trial to assist relators in preparation for trial......................................... 20 00”

We think that the order must be reversed. It appears from the moving affidavit that the defense to the action was that “the defendant at the time the alleged crime was committed was suffering from such a defect of reason as not to know that her act was wrong.” In preparing for the *488trial, counsel for defendant had three consultations with two eminent specialists in mental and nervous diseases, each of whom was thereafter called as a witness and testified upon the trial. That no allowance can be made for the expenses of these expert witnesses upon the trial is settled by authority. *(People ex rel. Cantwell*v. *Coler,*61 App. Div. 598; affd., 168 N. Y. 643.) For the conferences preceding the trial, however, each of the experts presented a bill for fifty dollars, which constitutes the first of "the items above considered, and this charge was allowed to counsel for defendant as part of their “personal and incidental expenses.” We think that this was improper. The service was in no sense personal to the counsel in order to enable them to determine whether to interpose the- defense of insanity or not, for it appears from their own affidavits that before consulting either of these specialists they became convinced as to the fact. While the service may have been of a beneficial character to defendant, and may have lightened the labors of the counsel assigned to her defense, it is sufficient to say that the statute has not as yet authorized the incurring of such expenditures. In *Matter of Waldheimer*(84 App. Div. 366) the services there rendered in looking up witnesses and marshalling evidence were doubtless helpful to counsel and beneficial to the defendant, but it was held that the statute did not authorize payment therefor. If, as we have decided *(Matter of Kenney*v. *Prendergast,*153 App. Div. 325), the services of an interpreter prior to the trial, rendered in an attempt to facilitate communication between defendant and his counsel, are not the subject of a proper charge, it seems to us that services of an advisory character by professional men prior thereto must also be excluded. The same reasoning applies to the other three items. A copy of the testimony taken at the coroner’s inquest was doubtless of assistance to counsel for defendant in preparing for the trial, but it does not appear that these minutes were necessarily used upon the trial in the cross-examination of any witness called by the People or for any other purpose. In this respect the item differs from that considered in *Matter of Monfort*(78 App. Div. 567), where the official survey was actually offered in evidence upon the trial in connection with the defense of the action. So also the sums *489paid to various parties for attendance at the office of counsel prior to the trial, to assist in the preparation thereof, should not be allowed. It does not appear that either of these persons actually testified upon the trial or was called thereto for the purpose of testifying. While it is not easy to define exactly what was intended by the use of the words • in the statute, “ personal and incidental expenses,” it seems clear to us that neither of the items objected to is fairly included within such a definition.

The order should be reversed, and the motion for a peremptory writ of mandamus denied, but, under the circumstances, without costs.

Jenics, P. J., Thomas, Carr, and Putnam,'JJ., concurred.

Order reversed, and motion for peremptory writ of mandamus denied, without costs.