
    R. A. Schoenberg & Company, Respondent, v. The City Trust and Safe Deposit and Surety Company and J. Stevens Ulman, Defendants, J. Stevens Ulman, Appellant.
    
    (Supreme Court, Appellate Term,
    December, 1906.)
    Reference — Qualification and tenure of referees — Removal — Insanity.
    Judgment — Opening or vacating on motion — In general — Grounds.
    Evidence — Expert evidence — Subjects of expert evidence — Sanity.
    Appeal — Time of taking — Notice of entry of judgment — Defect in copy served.
    Upon a motion to vacate a judgment for the insanity of the referee, where it appears that the referee, on the day he signed his decision, was duly adjudged a lunatic in a proceeding instituted in the Supreme Court, upon the petition of his wife and the certificates of two duly qualified medical examiners in lunacy, it is error to receive the affidavits of nonexperts as to the mental condition of the referee prior to and including the date of the inquisition in lunacy; and an order denying the motion to vacate the judgment will be reversed.
    Where, upon appeal from an order denying a motion, compelling the successful plaintiff to accept a notice of appeal from such judgment, service of a copy thereof upon appellant is disputed and, although it bears the certificate of the clerk, is not, in fact, a copy of the judgment, material parts thereof being omitted, such order will be reversed.
    Appeal by the defendant TJlman from two orders of the Gity Court of the city of Yew York, entered in an action to foreclose a mechanic’s lien.
    Philip Tillinghast (B. Benjamin Schiff, of counsel), for appellant.
    Leventritt & Brennan, for respondent.
    
      
       Schoenberg & Co. v. Ulman, 51 Misc. Rep. 83, reversed.
    
   Davis, J.

This is an appeal by the defendant TJlman from two orders of the City Court. One of these orders denied. the motion of defendant TJlman to vacate the judgment herein; the other order appealed from denied defendant’s motion to compel the plaintiff to accept a notice of appeal from the judgment. The appeals were heard together.

The action was brought to foreclose a mechanic’s lien against the property of defendant TJlman, The lien was bonded, the other defendant being surety on the bond.

On motion of the defendant TJlman the action was referred to George M. Boynton, Esq., to hear and determine. The case was finally submitted to the referee on September 29, 1905. On Yovember 28, 1905, the referee rendered an opinion indicating that his decision would be in favor of the plaintiff. This opinion was filed in the clerk’s office on December 7, 1905.

On December 15, 1905, the referee signed his decision containing findings of fact and conclusions of law, and this decision was filed on the 18th of December, 1905. Judgment was entered on the 19th of December, 1905.

The motion to vacate the judgment was made on the ground that the referee was a lunatic at the time he made his decision and on the further ground that, at the time of the entry thereof, a judgment could not be entered against the other defendant and that, therefore, as the judgment is joint, it is void as to both defendants. It appears from the record that the referee was duly adjudged a lunatic on the very day he signed his decision, December 15, 1905, by a proceeding in the Supreme Court. The order adjudging him insane was made by Mr. Justice Stover upon the petition of the incompetent’s wife and the certificates of two duly qualified medical examiners in lunacy. The proceedings in lunacy were used by the defendant Ulman upon the motion to vacate the judgment. In opposition to the motion, the plaintiff, to overcome the effect of the proceedings in lunacy and to establish the sanity of the referee, on December 15, 1905, read various affidavits of persons not experts. In his decision of the motion the learned justice considered the evidence upon which Justice Stover adjudged the referee to be insane and the affidavits read in opposition by the plaintiff, and reached the conclusion that the presumption of mental incapacity of the referee arising from the inquisition made by Justice Stover was entirely overcome. The second ground taken by the defendant was also held to be untenable and his motion to vacate the judgment was denied. If the referee was insane on the day he signed his decision, December 15, 1905, the motion to vacate the judgment should have been granted.

The plaintiff claims that the inquisition in lunacy being only presumptive proof of the insanity of the referee on December 15, 1905, was overcome by the affidavits read in opposition to the motion to vacate the judgment.

An examination of these affidavits leads us to the conclusion that it was error to receive them as evidence. They were made by nonexperts, and each affiant, after detailing his experience with Boynton, in some cases long after the date of the inquisition, in effect states that, in his opinion, Mr. Boynton is of sound mind or that ‘he had a clear legal mind. One affiant states that he had a long conversation with Boynton prior to and on December 15, 1905, and that, in his opinion, at no time for the past twenty years and up to and including the 15th day of December, 1905, has Boynton been insane or mentally incompetent. Under the rule laid down in many cases in the Court of Appeals' of this State, these affidavits were not competent as evidence of the mental condition of Boynton. It is well settled that lay witnesses may not testify to mental capacity. They may testify to acts and declarations of a person and then characterize them as rational or irrational, but they will not be allowed to testify that the person was of sound or unsound mind or possessed or lacked mental capacity. Wyse v. Wyse, 155 N. Y. 367.

For the foregoing reasons we think the .order denying the motion to vacate the judgment herein should be reversed; and, as the evidence of the insanity of the referee on December 15, 1905, is thus shown the defendant ought to prevail on a motion to vacate this judgment. Having reached this conclusion, it is unnecessary to consider the other ground urged by the appellant as to the dissolution of the defendant corporation at the time of entry of judgment. The second order appealed from denied defendant’s motion to compel the plaintiff to accept notice of appeal from the judgment. It is claimed by the respondent that a true copy of the judgment was served upon this defendant and his time to appeal was thereby limited. Appellant claims that he has never been served with a copy of the judgment; that the paper served upon him was incomplete and not a copy of the judgment and that his notice of appeal was served in time. The paper claimed to have been served is now before this court. Although it bears the certification of the clerk, it is really not a copy of the judgment. Material parts of the judgment are omitted. It is claimed by the respondent that it was a true copy when served, and that what is now the last sheet was fraudulently inserted after service. This charge involves the forgery of the name and certificate of the clerk. The papers do not appear to have beeen unfastened. We are inclined to believe that there was a mistake in copying, rather than the deliberate commission of a felony for the purpose of saving a right to appeal. This order also should be reversed.

Both orders reversed with costs and disbursements.

Gildersleeve and Fitzgerald, JJ., concur.

Orders reversed, with costs and disbursements.  