We would be disposed to grant the application of counsel for the respondent for leave to apply to the Appellate Division for an amendment of the order of reversal, were it not for the necessity of sending back this proceeding for a rehearing in any event. The application by respondent's counsel for compensation for himself and others who claim to have rendered services for the incompetent in the habeas corpus proceeding was denied at Special Term upon the ground that the said proceedings had been instituted in bad faith, or at least without authority. The Appellate Division reversed the order of the Special Term and allowed the full amount of the claims presented by respondent's counsel on his own behalf and for those interested with him. We think that the Appellate Division, instead of simply reversing the order of the Special Term, should have sent the proceeding back to that court with instructions to inquire by reference or otherwise into the necessity or propriety of the habeas corpus *Page 9 proceeding, the right of the respondent's counsel and those interested with him to compensation, and the reasonableness of the charges upon which the claims herein are based.
The order of the Appellate Division should, therefore, be modified so as to direct that this proceeding be remitted to the Special Term with instruction to proceed therein as above indicated, and as so modified affirmed, with costs to abide the final award of costs.
PARKER, Ch. J., GRAY, O'BRIEN, BARTLETT, HAIGHT and CULLEN, JJ., concur.
Ordered accordingly.