
    Chapman E. Strong, Appellant, v. The City of New York, Respondent.
    Second Department,
    December 29, 1905.
    City of New York"—when liable for compensation of examiner in lunacy employed, by sheriff of Queens county.
    The provisions -of the charter.of the city of New York in force from January 11, 1900, to June5, 1901* and the Insanity Law (Laws of 1896,. -chap. 545 imposed- upon the commissioner, of -public charities of the boroughs of Brooklyn and of "Queens the duty, of taking proper measures for-the determination of the question of the insanity of the persons who .were committed, to the cus- - tody of the sheriff of Queens county, and .section. 64 of the latter law provides that the fees,to the medical examiners allowed by the judge ordering the commitment of a poor of indigent person shall be a charge upon the city, etc.* ' securing the commitment.
    Hence-a physician is entitled- tó recover against the city of New York for services rendered as an examiner in lunacy at the request of the sheriff of Queens county, when it is shown .that the commissioner not only had knowledge of' the employment, but used certificates made" by plaintiff under the insanity Law in applications for orders of commitment, ■
    
      Tlie omission of a jucjge to allow fees pursuant to section 64 of the Insanity Law to such physician, who was acting under the employment of the commissioner, the moving party, does not deprive him of his right to compensation.
    Appeal by the plaintiff, Chapman E. Strong, from a judgment of the Municipal Court of the city of Hew York, borough of Queens, entered in the office of the clerk of said court'on the 27th day of May, 1904.
    
      Harry T. Weeks, for the appellant.
    
      Edward H. Wilson [ James D. Bell with him on the brief], for the respondent.
   Willard Bartlett, J.:

This action was brought by a physician to recover compensation for services rendered by him at the request of tlie sheriff of Queens county, between the 11th day of January, 1900, and the 5th day of June, 1901, as an examiner in lunacy, in examining into the sanity of certain persons who had been committed to the custody of said sheriff as apparently insane. The plaintiff has been defeated in his suit on the ground that his employment by the sheriff was not authorized by law, and on the further ground that the city of Hew Y orle is not under any express or implied obligation to pay Mm for his services.

During the period when the services were rendered the original Greater Hew York charter (Laws of 1897, chap. 378) was in force, and section 662 of that statute conferred upon the commissioner of public charities for the boroughs of Brooklyn and Queens, within said boroughs, all the authority concerning the care, custody and disposition of insane, feeble-minded, sick, infirm and destitute persons which the board of charities and correction of the city of Brooklyn and county of Kings as formerly constituted, and the superintendent or overseers of thepopr of the county of Queens, had at the time of the passage of that act.

The Insanity Law (Laws of 1896, chap. 545) in section 68 then contained, and now contains, the following provision : “ Any person apparently insane, and conducting himself in a manner:'which in a sane person would be disorderly, may be arreéted by any peace officer and confined in some safe and comfortable place until the question of his sanity be determined, as prescribed by this chapter. . The officer making such arrest shall immediately notify the superintend- '' ent of the poor of the county, or the" overseers of the poor of. the town Or city,, or in the. city of Hew York, the commissioners! of . i public- charities, or, in the city of Brooklyn, the commissioners of charities and correction, who shall forthwith take proper measures . for the determination of the question of the insanity of such person.*” ,

The effect of this 'enactment, taken in connection with the provision above cited from the original Greater .Hew York charter, was to impose upon the commissioner of public charities for the boroughs of Brooklyn and Queens the duty of-taking proper measures for the determination of the question of the insanity of the persons wlio . were committed to the custody of the sheriff of .Queens county, and who were examined by the plaintiff. The method of procedure for the determination of that question is prescribed in section 62 of the . Insanity Law, which requires* among other things,, that the petition ' shall be accompanied by the certificate of lunacy of the medical. examiners, as prescribed in section 61 of the same statute. The evidence upon the trial of the present action shows not -only that ■ the commissioner of public, •charities for‘the boroughs of - Brooklyn and.Queens was made acquainted with the fact that the plaintiff ■ was employed to examine persons committed to the Queens, county jail as insane persons, but also that some of the certificates made by the plaintiff as an examiner in lunacy Under section 61 of the Insanity Law'were- used -by the commissioner as the basis of his application, for orders of commitment-under section 62. It seems ' to me' that the evidence on this subject is sufficient to jhstify, if not to require* a finding that the employment of the -plaintiff 1 to make those examinations which resulted in a medical certificate of ' lunacy Was sanctioned by the commissioner. If so, the city of Hew York would seem to be liable to compensate him for liis services,at least in the cases of the poor and indigent,insane, under'section 64 of the Insanity Law, which provides that the costs necessarily - incurred in determining the question-of the-insanity of a poor or , indigent person- and in securing his admission into a State hospital, and the expense of providing proper clothing for such person shall be a charge, upon the town, city or county securing the commitment. - That section further provides that such costs shall include the fees allowed by the judge or justice ordering the commitment to the medical examiners.” In the present action it does not appear whether any such fees were expressly allowed by the judge or justice who passed upon the cases of the persons examined by the plaintiff, but the omission to procure such fees, to be fixed by the commissioner of public charities, who must liave been the moving party in the legal proceedings for the determination of the mental condition of a poor or indigent person, cannot be held to deprive an examiner in lunacy, acting virtually under the employment of the commissioner, of the right to be compensated for his services.

The proof in this case satisfies me that the plaintiff is entitled to recover against the city, at all events for a portion of his claim,-and I, therefore, advise a reversal of the judgment and the granting of a new trial.

Hirschberg, P. J., Woobward, Jenks and Hooker, JJ., concurred.

Judgment of, the Municipal Court reversed and new trial ordered, costs to abide the event.  