People ex rel. Manley v. Board of Supervisors , 132 N.Y.S. 868 ( 1911 )

Houghton, J.:

The relator is a physician and surgeon,, and one White having been indicted by the grand jury of Chenango county for murder in the second degree, and his trial being about to be moved, the district attorney of that county consulted with and employed the relator as an expert witness thereon. Ho specific per diem compensation was agreed upon, but it is shown by the affidavits of relator and others that the district attorney said he would see that the relator had his pay. The district attorney says that he cannot state exactly what was said, but in substance it was that he would endeavor to have the board allow a reasonable amount for such services. Although a considerably larger sum was mentioned, the relator made out a claim against the county for ten dollars per day for three days’ services and the district attorney indorsed thereon: “Dr. Manley attended the case as charged, and his bill would seem proper,” signing the same. This bill was regularly presented to the board and it was allowed at the sum of fifteen dollars, after the board had consulted with the district attorney concerning it.

The district attorney had the power to obligate his county to pay a reasonable sum for the services of an expert witness in the criminal trial about to be had. (County Law [Consol. Laws, chap. 11; Laws of 1909, chap. 16], § 240; People ex rel. Hamilton v. Supervisors, 35 App. Div. 239.) While his agreement was subject to review and audit as to amount by the board of supervisors, which would not be bound by any specific sum which he had agreed to pay, the county was compelled to recognize his agreement to pay the relator for his services as ah expert witness, and bound to audit a reasonable sum therefor

The only proof appearing in the record is that ten dollars per day for such services was the minimum charge prevailing at the time in the county of Chenango, and the record discloses that that amount was allowed to other physicians in the same case. The board, allowed only five dollars per day, which, under the facts appearing, Was wholly unreasonable. It is not seriously contended that the relator was not employed as an expert witness. If he was not employed as an expert he was entitled to nothing aside from his ordinary fees. Having been employed as an expert he should have been allowed at least the minimum rate therefor.

The fact that other bills were allowed to relator could not affect the bill under consideration. Those audits must be presumed to have related to the precise services for which the bills were presented and it is to be assumed that the board of supervisors properly audited them.

While the amounts demanded by physicians for expert services in criminal matters are often the subject of just criticism, they are entitled to fair and reasonable compensation, and justice would often miscarry if juries did not have' the benefit of their expert testimony. . The record shows that the relator was a leading physician in his community and that five dollars per day was not a reasonable compensation for his services in . attending upon the trial as an expert'.

It follows that the determination of the board of supervisors must be annulled, with twenty-five dollars costs and disbursements, and the matter remitted to them for further audit.

All concurred, except Betts, J., dissenting in opinion.