
    (67 App. Div. 385.)
    WASHER v. SLATER.
    (Supreme Court, Appellate Division, Third Department.
    December 7, 1901.)
    1. Insane Persons—Statutes—Examination—Commitment — Courts — Jurisdiction—False Imprisonment.
    Laws 1896, c. 545, § 60, provides that a person alleged to be insane may be committed to an institution by a judge of a court of record, on a certificate of lunacy by two medical examiners, accompanied by a petition, and after a hearing. Section 62 provides that the application may be by any person with whom the alleged lunatic resides, or at whose house he may be, or the father, mother, husband, wife, brother, sister, or child of such person, or any overseer of the poor of the town, or the superintendent of the poor of the county, in which such person may be. Held, that where the petition for the commitment of plaintiff as a lunatic was made by his son-in-law, with whom plaintiff did not reside, and the certificate of two medical examiners showed that they did not believe the plaintiff insane, but merely “devilish,” and the court dispensed with a personal examination because he did not believe plaintiff could understand, the court was without jurisdiction to make an order committing plaintiff to an insane asylum.
    2. False Imprisonment-Defenses.
    Where a person is committed to an insane asylum by a county judge, without jurisdiction, on the application of one not authorized to make the petition any more than any stranger, the adjudication of insanity was no protection to such applicant, in an action for false imprisonment.
    Houghton, J., dissenting. '
    Appeal from trial term, Franklin county.
    Action by George Washer against Warren J. Slater. From a judgment dismissing the complaint, and from an order denying a motion for a new trial, plaintiff appeals.
    Reversed.
    Argued before PARKER, P. J., and SMITH, EDWARDS, CHASE, and HOUGHTON, JJ.
    Badger & Cantwell, for appellant.
    Frederick G. Paddock, for respondent.
   EDWARDS, J.

This action was brought to recover damages for the false imprisonment of the plaintiff by the defendant in the insane asylum at Ogdensburg, N. Y. The complaint sets forth the petition and certificate of the two medical examiners presented to the county judge of Franklin county on the application of the defendant to have the plaintiff adjudged to be insane and to be committed to an asylum, and alleges that they were insufficient to confer jurisdiction on the county judge to make the order of commitment. The answer avers that all the proceedings under the application of the defendant to the county judge were regular and legal. At the close of the plaintiff’s case, the court dismissed the complaint on the ground that the county judge had jurisdiction to make the order of commitment.

The facts, as disclosed on the trial, are that the application to the county judge was made by the defendant, whose verified petition sets forth that he is a son-in-law of the plaintiff, and that the facts upon which the application is based are—

“Several Irrational- acts, such as trying to obtain the arrests of parties for fictitious crimes, & leaving his home &■ going to hotel to board, without any •cause therefor, & try to have his wife, who is perfectly sane, kept under lock & key, & also by making himself a general nuisance in the community.”

This petition was accompanied by.a certificate of lunacy made by two medical examiners upon the blank form furnished by the state commission in lunacy pursuant to the statute, the printed portion of which reads that the examiners—

“Being severally and duly sworn, do severally certify, and each for himself certifies, with the exceptions which are hereinafter noted, as follows: * * * “(2) I have with care and diligence personally observed and examined on the date of this certificate, namely, on the-day of-, now residing or being at-, in the county of-, and, as' a result of such joint examination, find, and hereby certify to the fact, that he is insane, and a proper, subject for custody and treatment in some institution for the insane, as an insane person, -under the provisions of the statute. (The blank spaces for date, name, and residence were filled in by the examiners, 30th day of. April, 1900. George Washer, Saranac Lake, Franklin.) “(3) I have formed the above opinion upon the subjoined facts: (a) Facts indicating insanity personally observed by me, as follows: The patient said”—

The blank lines here left in the certificate are filled in by the two medical examiners with the following statement:

“That his wife, daughter, and son-in-law had forged a deed of some property, & that he was going to send them to state prison; & he also said many other strange things about his family. On other subjects he seemed sane enough, but we find that always there has been friction between husband & wife, & the present trouble seems to grow out of the fact that the husband a year ago tried to sell a house, & was prevented by the family, which so angered him that since that time he has done everything he could think of to annoy them. But, considering all the facts in the case, & his age & disposition (which is a very bad one), we are inclined to call him ‘devilish,’ instead of insane. He has been most peculiar for 20 years, & has done many things which might be called insane, but we are inclined to think that his present condition is the result of his great hatred for his family. 1-Ils wife is now at his daughter’s, & the old man is living alone, & seems to enjoy himself, & seems quiet and harmless.”

On this 'certificate and accompanying petition the county judge of Franklin county on May 3, 1900, made an order of commitment of the plaintiff to the St. Lawrence state hospital,—an institution for the custody and treatment of the insane. On the following day the plaintiff was received in the state hospital at Ogdensburg; and on that day the county judge made a certificate that he had dispensed with personal service on. the plaintiff, the- alleged insane person, for the reason, as stated in the certificate, “that patient would not comprehend motive of the proceeding.” The plaintiff- remained in the hospital 19 days. The assistant physician at the hospital testified that he did not at any time during the plaintiff's stay there observe any indications of insanity in his appearance, manner, or condition.

The proceeding whereby the plaintiff was restrained of his liberty may be briefly summarized as follows: A son-in-law, with whom the plaintiff did not reside, on his petition accompanied by a certificate of two medical examiners, whose sworn statement shows that they did not believe the plaintiff to be insane, but “devilish” only, made application to the county judge; and thereupon, without any personal service upon or notice to the plaintiff, the county judge made an order committing him to an insane asylum, and the following day made a certificate that he had dispensed with personal service because the plaintiff “would not comprehend motive of the proceeding.” Comment or criticism on this proceeding is quite unnecessary. The only question for our determination is whether the county judge acquired jurisdiction to make the commitment. The authority of a county judge to make an order for the commitment of a person in an institution for the custody and treatment of the insane is derived from the statute. Laws 1896, c. 545. Section 60 of that statute provides that:

“A person alleged to be Insane and who is not in confinement on a criminal charge, may be committed to and confined in an institution for the custody and treatment "of the insane, upon an order made by a judge of a court of record of the city or county, or a justice of the supreme court of the judicial district, in which the alleged insane person resides or may be, adjudging such person to be insane, upon a certificate of lunacy made by two qualified medical examiners in lunacy, accompanied by a verified petition therefor, or upon sudh certificate and petition, and after a hearing to determine such question, as provided in this article.”

Section 61 provides that:

“The certificate of lunacy must show that such person is insane and must be made by two reputable physicians, * * * and show that the condition of the person examined is such as to require care and treatment in an institution for the care, custody and treatment of the insane.”

Section 62 designates the person by whom, and provides the manner in which, the application shall be made, as follows:

“Any person with whom an alleged insane person may reside or at whose house he may be, or the father or mother, husband or wife, brother or sister, or the child of any such person, and any overseer of the poor of the town, and superintendent of the poor of the county in which any such person may be, may apply for such order, by presenting a verified petition containing a statement of the facts upon which the allegation of insanity is based, and because of which the application for the order is made. Such petition shall be accompanied by the certificate of lunacy of the medical examiners, as prescribed in the preceding section.”

Here the application was not made by the overseer of the poor of the town, or the superintendent of the poor of the county, or by a person with whom the plaintiff resided, or at whose house he was, or by any relative specified in that section, but was made by the son-in-law, who was not, within the legal meaning, a “child” of the plaintiff, and had no more authority to make the petition than a stranger; and the certificate of the medical examiners accompanying such application did not show that the plaintiff was insane, as required by the statute, but rather to the contrary.

I think it quite clear that the petition and the certificate did not confer any jurisdiction upon the county judge to make the order of commitment, and his adjudication was no protection to this defendant, who instituted the proceedings. For this reason, the judgment should be reversed, and a new trial granted, with costs to the appellant to abide the event. All concur, except HOUGHTON, J., who dissents.  