Opinion
April, 1907.
William B. Ellison, Corporation Counsel, for plaintiff.
James J. Fitzgerald, for defendant.
The allowance by the court of reasonable compensation to assigned counsel in a capital case under section 308 of the Code of Criminal Procedure is not an order or judgment under which execution may issue. The justice presiding at the trial may grant a certificate only, and the award thereupon becomes a county charge, payable out of the court fund. The justice granting the certificate possesses no power to summarily enforce the payment of the sum awarded. People v. Heiselbetz, 30 A.D. 199. Whenever a particular mode of payment of the obligation of a municipal corporation is prescribed by statute such mode must be pursued (Fidelity Deposit Co. v. City of New York, 108 A.D. 263), and under the Code provision above referred to the comptroller of the city of New York was required to honor the certificate out of the court fund of the county. Mandamus has been uniformly invoked to compel the comptroller to make such payments. People v. Grout, 87 A.D. 193; Matter of Montford, 78 id. 567; People v. Grout, 61 id. 538; People v. Coler, 61 id. 598; Matter of Waldheimer, 84 id. 366; People v. Grout, 37 Misc. 430. Since the adoption of section 1 of chapter 304 of the Laws of 1874, no action is maintainable against the county as such, and no execution can, therefore, issue against it. Brady v. Supervisors, 2 Sandf. 460; affd., 10 N.Y. 260; People v. Green, 56 id. 466; Port Jervis Water Works Co. v. Port Jervis, 151 id. 114. By the revised charter of 1901, section 8, the title to all the property of the county is now vested in the city of New York. The County Law is inapplicable to the county of New York. Laws 1892, chap. 686, § 1. The issuance of an execution to collect the award made to the counsel was unauthorized and it must be vacated.
Ordered accordingly.