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compensation. I am of opinion that, as the statute contemplated providing counsel to participate in the trial for the defendant, when counsel is so assigned, whether at the arraignment or subsequent thereto, if he actually takes part in the trial in the defense of the defendant, he falls within the provisions of the statute, and becomes entitled to his compensation.

If these views be sound, it follows that the order appealed from should be affirmed, with $10 costs and disbursements to the respond

ents.

PATTERSON and LAUGHLIN, JJ., concur.

INGRAHAM, J. (dissenting). The only question presented on this appeal is as to the constitutionality of section 308 of the Code of Criminal Procedure. As originally enacted, this section provided that if the defendant was indicted for a crime, when he appeared for arraignment without counsel "he must be asked if he desire the aid of counsel, and, if he does, the court must assign counsel." By chapter 521, p. 1118, of the Laws of 1893, there was added to this section a provision that:

"When services are rendered by counsel in pursuance of such assignment in a case where the offense charged in the indictment is punishable by death, the court in which the defendant is tried may, in its discretion and upon satisfactory proof that such defendant is wholly destitute of means, award such counsel a reasonable compensation for his services which shall be a charge upon the county in which the indictment in the action is found, to be paid out of the proper fund upon the certificate of the judge or justice presiding at the trial."

This section of the Code was further amended by chapter 427, p. 569, of the Laws of 1897, as follows:

"When services are rendered by counsel in pursuance of such assignment in a case where the offense charged in the indictment is punishable by death or on an appeal from a judgment of death, the court in which the defendant is tried, or the action or indictment is otherwise disposed of, or by which the appeal is finally determined, may allow such counsel his personal and incidental expenses upon a verified statement thereof being filed with the clerk of such court, and also reasonable compensation for his services in such court, not exceeding the sum of five hundred dollars, which allowance shall be a charge upon the county in which the indictment in the action is found, to be paid out of the court fund, upon the certificate of the judge or justice presiding at the trial or otherwise disposing of the indictment, or upon the certificate of the appellate court, but no such allowance shall be made unless an affidavit is filed with the clerk by or on behalf of the defendant, showing that he is wholly destitute of means."

The defendant claims that this section of the Code of Criminal Procedure, as now in force, is in violation of article 8, § 10, of the Constitution. That section provides:

* * *

* * *

"No county, city, town or village shall hereafter give any money or property to or in aid of any individual, nor shall any such county, city, town or village be allowed to incur any indebtedness except for county, city, town or village purposes."

It is claimed by the defendant that the payment to counsel for a person accused of a crime for services rendered, not to the county, but to the prisoner, is not a county purpose, within the meaning of

this provision of the Constitution, but is, in effect, a provision by which the county is compelled to give money to or in aid of an individual. In the Matter of Chapman, 168 N. Y. 80, 61 N. E. 108, 56 L. R. A. 846, 85 Am. St. Rep. 661, the statute under consideration provided for the payment by the municipal corporation of reasonable counsel fees and expenses made or incurred by a city or county officer in successfully defending himself in any trial or proceeding to remove him from office, or to convict him of any crime alleged to have been committed in the performance of or in connection with his official duties; and it was there held, affirming the decision of this court (57) App. Div. 583, 68 N. Y. Supp. 1135), that the act then in question was in violation of the constitutional provision above referred to. In speaking of this provision of the Constitution which was adopted as an amendment to the Constitution in 1874, it was said that this amendment was passed in consequence of several decisions of the courts of this state which held that the Legislature had power to recognize claims founded in equity and justice in the largest sense of those terms, or in gratitude or charity; that, while it has been held that this provision does not prevent the Legislature from authorizing the payment by a municipal corporation of a claim which, although it could not be enforced by the courts, is founded in justice, supported by a moral obligation-one that would have been legally created if the proceeding of the local authorities had been regular-or when the payment of a claim otherwise valid was barred by the statute of limitations, or one for money expended or services performed for the benefit of a city without lawful authority, to justify the payment of the money of a city or county there must in some way be an obligation upon the municipal corporation. The county is prohibited by this constitutional provision from giving any money or property to or in aid of any individual, or incurring any obligation except for county purposes. Where money has been expended for the benefit of a county, where services have been actually rendered to a county, where the county has received the value of supplies furnished to it, an obligation for the payment of that from which the county has benefited would flow from the benefit received, and the payment of such an obligation would not be a gift of money to or in aid of an individual. We have in this statute now under consideration an attempt to require the payment of public moneys by a county where no services have been rendered to or benefit accrued to the county, but by a direction to pay the fees of counsel assigned to defend a person charged with the commission of a crime for services rendered to the individual. That it would be an act of charity to provide a person in this situation with the means of defense would not, probably, be disputed, but it seems to me that it is money given to or in aid of an individual whose defense had become necessary by reason of the charge. In ascertaining the meaning of this provision of the Constitution the exception is quite significant, for it is provided that "this section shall not prevent such county, city, town or village from making such provision for the aid. or support of its poor as may be authorized by law." What is prohibited is the giving of the money to or in aid of an individual, except provision for the aid or support of the poor may be made. In Chap

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man v. The Mayor, supra, it was held that a statute that authorized the payment of counsel fee incurred by a public officer in defending the title to his office, or to prevent his removal from office, was giving to or in aid of an individual money or property within the provision of this section. In Matter of Straus, 44 App. Div. 425, 61 Ñ. Y. Supp. 37, we held that the provision of this act, so far as it authorized a public officer who had been indicted for a crime to recover counsel fees expended by him in his defense, was unconstitutional; and in Matter of Jensen, 44 App. Div. 509, 60 N. Y. Supp. 933, a similar view was taken of that provision by the Appellate Division in the Second Department. It would seem to follow that the Legislature had no power to impose upon the county of New York an obligation to pay a sum of money to Mr. Purdy as compensation for services performed for the benefit of a person charged with a crime. In Chapman v. The Mayor, however, in alluding to this section of the Code of Criminal Procedure, it was said:

"This exception is founded on the theory that a fair trial cannot be had without the aid of counsel, and that money paid from public funds to a counsel appointed by the court for a prisoner without means is paid for a public purpose."

The court is here stating the theory upon which these payments have been attempted to be justified; but further on the court say:

"Whoever lives in a country governed by law assumes the risk of having to defend himself without aid from the public against even unjust attempts to enforce the law, the same as he assumes the burden of taxation. As was said in Matter of Jensen, supra, it is 'a part of the price he pays for the protective influence of our institutions of government.'"

I do not think, in considering this constitutional prohibition, that it is any less a gift for the benefit of an individual that the person charged with the crime is unable to pay his counsel. In Chapman v. City of New York, supra, it appeared that the city had charged one of its officers with an offense which would justify his removal if proved. Yet it was held that his necessary expenses in meeting the unjust attack was not such a charge as the Legislature could require the city to pay. In this case the state has charged an individual with a crime. He has been tried and proved innocent, and the county has been ordered to pay a fee allowed his counsel for services rendered to him upon that trial. No service was rendered to the county or to the people of the state for which the counsel for the prisoner asked to be paid, and, assuming that it was for the interest of the public that upon the trial the defendant should have the advantage of counsel, it is none the less a gift of the money of the county to or in aid of an individual. I am unable to see how it can be said that, if the direction for the payment of money in the Chapman Case or in the Straus Case was unconstitutional, this statute is constitutional, which does just what the act of 1899 in the two cases just cited attempted to do in the case of a public official indicted for an offense or a crime relating to his official conduct. Counsel is as necessary for the proper conduct of the trial of an action against a public official for a crime as it is against a person not a public official indicted for homicide. We are speaking of the power

of the Legislature, not of its proper exercise; and while an unfortunate human being, without means, accused of the crime of homicide, appeals much more strongly to the sympathy than a public official who is accused of a less serious offense, when you consider the question of the power of the Legislature I cannot see that there is any distinction between the two cases; nor does it seem that the assignment of counsel by the court changes the nature of the payment to counsel. The Code requires that a prisoner shall be asked, when he appears for arraignment, if he desires the aid of counsel, and, if he does, the court is directed to assign him counsel to conduct his defense; but a counsel thus assigned does not become a public official, nor does he act for the county. When a counsel is admitted to practice, he assumes an obligation to aid the court in the administration of justice; and while he is entitled to receive compensation for his service, the person for whose benefit the services are rendered is the one who is under obligation to pay therefor, and imposing upon the county a payment for services thus rendered to the individual is, it seems to me, clearly a payment or giving of money to or in aid of an individual, and not for a city or county purpose. We have seen of late many attempts to impose upon municipal corporations or counties obligations which are not for county or city purposes, and the legislation of the past few years illustrates the importance of a strict enforcement of this constitutional prohibition. The abuses that have grown up under this provision of the Code of Criminal Procedure are illustrated by what was said by Judge Foster in People v. Fuller, 35 Misc. Rep. 189, 71 N. Y. Supp. 487, and I think, whatever hardship the enforcement of this constitutional prohibition may work in a particular case, it is essential to the protection of the people that the use of money raised by taxation should be strictly limited to a use for the benefit of the people from whom it is collected.

My conclusion, therefore, is that this whole provision for the payment of counsel for persons charged with criminal offenses, no matter what the charge or the ability of the person to pay, is a violation of this provision of the Constitution, and that no payment by a county for such charges can be enforced. It also appeared that the service. rendered for which this claim was made was not within the provisions of section 308 of the Code of Criminal Procedure. It is there provided that when the prisoner is arraigned without counsel he must be asked if he desires counsel, and, if so, the court must assign counsel. The section therefore only applies to a case where, upon his arraignment, the prisoner is without counsel, for the section then provides that, "where services are rendered by counsel in pursuance of such arraignment in a case where the offense charged in the indictment is punishable by death, the court" may allow such counsel his personal and incidental expenses, which allowance will be a charge. upon the county in which the indictment in the action is found, to be paid out of the court fund. To entitle counsel to compensation under this statute, he must be assigned by the court when the prisoner is arraigned without counsel. Now, in this case it appeared that when the prisoner was arraigned Mr. Purdy had been employed by the

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prisoner and engaged in his defense; that he conducted his defense before the coroner, and upon the indictment of the prisoner his counsel appeared for him, and pleaded not guilty of the charge of murder for which he was indicted; that at the arraignment no application was made by the prisoner, or on his behalf, for the assignment of counsel; that subsequently, on July 8, 1902, an application was made to a judge other than the judge before whom the prisoner was arraigned, and counsel was assigned for the defendant to protect his interest and defend him upon the trial. The prisoner having thus had counsel at the time of his arraignment and plea, and at that time having made no request that counsel be assigned him, the court was under no obligation to assign counsel for the prisoner, and the provision of this section which made the fee of a counsel assigned to defend the prisoner upon his arraignment a county charge does not apply.

I think, therefore, that the order appealed from should be reversed and the proceeding dismissed, but, under the circumstances, without costs.

VAN BRUNT, P. J., concurs.

(87 App. Div. 116.)

NEWMAN v. LEE.

(Supreme Court, Appellate Division, Second Department. October 22, 1903.) 1. ADMISSION OF EVIDENCE-HARMLESS ERROR.

Where, in a trial to the court, certain evidence admitted over plaintiff's objection that it was improper, under the answer, is held not to establish a defense, the propriety of the overruling of the objection will not be reviewed.

2. BROKERS-GENERAL AGENT-RULES OF STOCK EXCHANGE-BINDING FORCE ON CLIENT.

Rules of a stock exchange, by which a broker, who is a member thereof, is prohibited from receiving a certain class of legitimate orders, are in the nature of "private instructions" by him to his general agent for the brokerage business, and cannot be received, as against a client who is ignorant thereof, to limit the agent's authority.

8. SAME.

A broker whose agent receives an order violative of the rules of the exchange of which the broker is a member cannot urge that the client, who was ignorant of the rules, was nevertheless bound by them, as constituting the custom of the business, the effect of which was to invalidate his order; the client having the right to presume that both the broker and his agent obeyed the customs of their business.

Appeal from Municipal Court, Borough of Brooklyn, Second District.

Action by Katherine H. Newman against John T. Lee. From a judgment for plaintiff, defendant appeals. Affirmed.

Argued before BARTLETT, JENKS, WOODWARD, HIRSCHBERG, and HOOKER, JJ.

Samuel G. Adams, for appellant.

Michael Kirtland, for respondent.