
    Irving L. Brayman, Appellant, v. John P. Grant, Respondent.
    Third Department,
    January 6, 1909.
    Incompetent- persons — commitment under section 62 of Insanity Law ' — dispensing with notice — constitutional law — right of incompetent to notice —finding as to dangerous character of lunatic —false imprisonment — evidence — cross-examination.
    A county judge on committing an incompetent person on the petition of an overseer of the poor under section 62 of the Insanity Law, may, as permitted by said section dispense with service of notice on the incompetent or the husband, wife or next of kin, if' he states that the insanity is so pronounced that it is unnecessary to give notice and that notice will .only tend to excite the' incompetent and aggravate his trouble.
    Although the judge iu committing the incompetent uses a blank .furnished by the Lunacy Commission stating that “I have dispensed with personal' service, or that I have directed substituted service as provided by law,” etc., the use of the alternative is. a mere clerical error and the judge must he deemed to have.intended to dispense with personal service both upon the incompetent' and his wife.
    Section 62 of the Insanity Law, which permits a judge on committing an incompetent on petition of an overseer of the poor to dispense wholly with notice, does " not deprive the incompetent of his constitutional rights.
    Section" 62 of the Insanity Law governs the commitment of insane paupers on petition of the overseers of the poor, while sections 66 and 68 of that law govérn the commitment of incompetents having means or relatives able to maintain them, and where the commitment is made under the former section, it need not he found by the judge that the incompetent' is a dangerous man in the community as required by the latter sections.
    In an action against a county judge for the false imprisonment of a lunatic, it is not error to refuse to allow the plaintiff to ask his witness whether statements contained in an affidavit made by him were true. This, because one cannot cross-examine his own witness. If surprised by testimony, he may call the witness’ attention to inconsistencies with statements' theretofore made and ask him if his recollection is thereby refreshed, and even in such case the form of the Question is largely in the discretion of the court. -
    In any event, such ruling does not constitute reversible error where the evidence sought was immaterial and could not affect the result.
    Appeal by the plaintiff, Irving L. Brayman, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Delaware on the 1st day of June, 1908; upon the dismissal of the complaint by direction of the court at the cióse of plaintiff’s case upon a trial at the Delaware Trial ■ Term.
    On the 25th day of August, 1906, the plaintiff was committed to the State Hospital at Binghamton as an insane person hy an order signed by John P. Grant, county judge of Delaware county. That order of commitment was made upon the certificate of two physicians in due form, which recited that the plaintiff was 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. In the specific statement of facts made the patient was declared to be dangerous, excited and somewhat depressed. Further' facts were stated indicating his insanity, to wit: That the patient said he was being poisoned by wife, nurse and others; that Masons were in conspiracy against him to assassinate him; that he would not go to any hospital without a bitter fight, and any doctor that committed him would better look out. The certificate stated that he was excited, determined and threatened, and further stated that the family says he accuses them of poisoning him; that his wife is unfaithful to him; that his children are not his own. He has also struck his - wife and says from now on she will get more.” The petition was made by the overseer of the poor of the town of Walton. The plaintiff’s wife was at that time living in the town of Walton. The county judge was at the time of making the order of commitment in the town of Walt,on. He signed a certificate dispensing with personal service, which was in form as follows:
    “ I do hereby certify that I have dispensed with personal service, or that I have directed substituted service, as provided by law, upon . the person hereinafter named for the following reasons : It is such a pronounced case of insanity that I deem it unnecessary to give notice, and notice would only tend to excite him and aggravate his trouble.”
    About one year thereafter, upon a writ of habéas corpus, plaintiff was released from the asylum and brought this action against the said John P. Grant for false imprisonment.
    Upon the trial, at the close of plaintiff’s evidence, the court dismissed the complaint. From the judgment entered upon such dismissal this appeal is taken.
    
      
      Irving L. Brayman, appellant, in person.
    
      John P. Grant, respondent, in person.
   Per Curiam :

This judgment is first challenged upon the ground that the county judge had no jurisdiction to grant the order of commitment, by reason of the failure of the service of notice either upon the plaintiff or upon his wife, who was residing within the same town. Section 62 of the Insanity Law (Laws of 1896, chap. 545, as amd. by Laws of 1903, chap. 146) provides in case of a petition by the overseer of the poor, that notice must be served both' upon the person alleged to be insane and also upon the husband or wife, father or mother or next of kin of such alleged insane person, if there be any such known to be residing within the county. It is further provided, however, that this notice may be dispensed with by the. judge who issues the order, and it only requires that he shall state his reason for dispensing with the personal service of such notice. There is nothing in the.statute stating for what reason service may be dispensed with. That seems to be left to the discretion of the magistrate. In this case the county judge dispensed with personal service upon two grounds:. First, that plaintiff’s insanity was so pronounced that it was unnecessary to give notice, and, second, that notice would only tend to excite him and aggravate his, trouble. Without specification in the statute of the ground upon which the magistrate may dispense with notice, we think that it cannot be said that he has failed to state sufficient reason within the discretion which seems to be given to him. It is further contended that the certificate dispensing with service is in the alternative, and provides that the judge has dispensed with, personal service or has directed substituted service upon the persons “ hereinafter named.” It is claimed that such a certificate is a nullity because in the alternative. But these certificates . are required to be made upon the blanks furnished by the Lunacy Commission. If substituted service is directed, the statute requires that the person shall be named upon whom such substituted service, shall be made. Inasmuch as no person is named upon whom substituted service is to be made, it is apparent that the form of the certificate was a clerical oversight on the part of the judge, and that he intended in fact to dispense with personal service, both upon the plaintiff and his wife.' But it is contended that the magistrate had no right to dispense with personal service, and that the provision of section 62 was intended to allow the magistrate only to shorten, the time after such personal service should be made before the hearing, and that plaintiff’s constitutioual rights are evaded by ordering his commitment without his- right to be heard before the court making the order. But such has been the law in this State for many years. It seems to arise from the necessity of the situation. The right to commit without - personal notice has never been held to take from an alleged insane person his constitutional rights, and to so hold would greatly embarrass the administration of this branch of the law and endanger the safety of the community. (See Matter of Walker, 57 App. Div. 1.) We cannot agree, therefore, that the statute may not provide that personal notice of the application may be wholly dispensed with without impairing the constitutional rights of the alleged lunatic.

Again, plaintiff contends that there is no finding here that he is a dangerous man in' the community, as seems to be required by sections 66 and 68 of the Insanity Law. This commitment, however, was made under section 62 of the law. In that section there is no requirement that the alleged lunatic shall be found to be dangerous before the order can be made. The application is made by the overseer of the poor of the town in which he resides. It may be presumed that the alleged lunatic had not sufficient means with which to provide for his care, and that it was a proper case in which the overseer should act. Under section 62 all that is required to authorize the commitment is the certificate of two physicians that the alleged lunatic is a proper subject for treatment and care in a State hospital. Section 66 assumes to provide for a different class of persons — those who are of sufficient means to care for themselves, or who have relatives who are able and willing to maintain them. The heading of the section indicates that it provides for liability for the care and support of the insane, other than the poor and indigent.” Section 68 provides especially for the dangerously insane. While sections 66 and 68 may both overlap section 62, it is evident that they are not intended to add to the requirements of section 62 any further jurisdictional facts than are therein declared.

Error is further claimed in the refusal of the trial judge to allow the plaintiff to ask of his own witness, after reading a long statement made by the witness in an affidavit, whether that statement was true. The practice is well settled that one cannot cross-examine his own witness. If one having called a witness is surprised by liis testimony, he may call his attention to inconsistent statements theretofore made by the witness and ask him if his recollection is thereby refreshed. Even then the form of the question is largely in the discretion of the court. The statement read from the affidavit or verified answer contained a number of facts, and it was not an abuse of thfe discretion of the trial judge to refuse to allow the attorney to ask the ivitness whether that statement Avas true. A further answer to tins claim of error would seem to be that the matter claimed.to be shown by the question Avas immaterial, and if shown could not affect the result. We have carefully examined the record in this case and . are led to believe the trial judge was right in dismissing the complaint.

The judgment should, therefore, be affirmed, Avith costs.

AH concurred, except Sewell, J., not voting.

Judgment affirmed, with costs. 
      
       See Insanity Law, § 60.— [Rep-,
     
      
       Id.. § 68.—[Rep.
     
      
       Amd. by Laws of 1900, chap. 380.— [Rep.
     