
    William S. Gridley, Respondent, v. The College of St. Francis Xavier, Appellant.
    (Argued February 6, 1893;
    decided February 28, 1893.)
    An exception to a decision denying a motion for a new trial made on the minutes of the trial judge, presents no question for review in this court.
    The Court of Common Pleas of the city and county of New York, is for the purposes of a proceeding ele idiota inquirendo, a court of general jurisdiction (State Const, art. 6, § 13; Code Civ. Pro. § 363, sub. 8), and to uphold its jurisdiction, when attacked collaterally, it may be presumed that all proper notices were served upon the idiot, in the absence of anything in the record showing that they were not served.
    It is not essential in such proceedings that the alleged idiot should have notice of the application for a commission. If any notice whatever of the proceedings is necessary, where they are instituted by a parent of the person proceeded against, as to which, quaere, notice of the time and place for the execution of the wnt is sufficient to give the court jurisdiction, and while the alleged idiot should have notice of motion to confirm the findings of the jury and for the appointment of a committee, the failure to give such notice does not render the proceedings void,
    Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made February 8, 1892, which affirmed a judgment in favor of plaintiff and also affirmed an order denying a motion for a new trial.
    This action was brought by plaintiff as assignee of one Vosteen, who was lessee of certain premises in the city of FTew York, to recover rent alleged to have been paid to defendant by mistake.
    The facts, so far as material, are stated in the opinion.
    
      George Bliss for appellant.
    The court erred in admitting the inquisition. (In re Blewitt, 131 N. Y. 546.) The only notice that it can be pretented was given to the alleged idiot was that received on May nineteenth to attend before the commission on May twentieth. It does not appear th'at she did, in fact attend. (Elmer on Lunacy [5th ed.], 7, 263.) On the undisputed facts in the case Mosteen voluntarily paid his rent to the defendants with a knowledge or means of knowledge of all the facts and neither he nor his assignee could thereafter recover the money. (Clarke v. Dutcher, 9 Cow. 674; Mowatt v. Wright, 1 Wend. 355 ; Bennett v. Bates, 84 N. Y. 354, 373; Vanderbeck v. City of Rochester, 53 Hun, 87; Wyman v. Farnsworth, 3 Barb. 369; Silliman v. Wing, 7 Hill, 159; Flower v. Lance, 59 N. Y. 603; Quincey v. White, 63 id. 370.)
    
      Howard A. Sperry for respondent.
    When the owner of real estate, which had been sold for taxes, but regularly .redeemed from the sale, under a. mistaken representation of the purchaser that he had received a conveyance which had become absolute, purchased his title of the latter, the price paid may be recovered as for money paid by mistake. (Martin v. McCormick, 8 N. Y. 331.) Defendant objected to the introduction, in evidence, of the inquisition upon the ground, that it appeared on its face, that the court never acquired any jurisdiction in the proceedings. It was properly received. (5 Daly, 288.)
   Earl, J.

In 1873, Ann Eliza Owens owned certain real estate, situate in the city of Xew York, subject to the life estate of her mother, Ann Owens. Ann Eliza was an idiot, and in the year mentioned, her mother instituted in the Court of Common Pleas of the city and county of Xew York a proceeding de idiota inguirendo for the purpose of having her declared incompetent to take care of herself and her property. That proceeding was carried to a conclusion in that court. She was found to be an idiot, and a committee of her person and estate was appointed. Some years thereafter she conveyed her real estate to the defendant. In April, 1888, Ann Owen, her mother, leased the real estate for five years from the first day of May fbllowing. Ann Eliza died in June, 1890, and a few days thereafter her mother died. After the death of Ann Owens the lessee paid rent for nearly a year to the defendant, supposing the deed from Ann Eliza to it was valid and that it had the title to the real estate and thus the right to receive the rent, hotli he and it being then ignorant that a committee had been appointed for Ann Eliza.

The lessee claiming that the moneys thus paid to the defendant ivere j>aid by mistake, assigned his claim for them to the plaintiff who demanded the same of the defendant. It refused to refund the moneys thus paid, and then the plaintiff commenced this action to recover them. He recovered, and the defendant has appealed from the judgment entered in his favor.

In this court we can consider only exceptions taken at the trial.

The plaintiff gave evidence tending to show that this money was paid jmder a mistake of fact, as alleged by him. The defendant made no motion for a nonsuit upon the trial, made no request to the trial judge to charge the jury and took .no exception to the charge as made. The record contains but three exceptions.

The assignment by the lessee to the plaintiff of the cause of action was dated on the 6th day of June, 1891, and ivas duly .acknowledged. The plaintiff offered it in evidence without any further proof of its execution. Defendant’s counsel •objected to the assignment as evidence on the ground that it was not an instrument which could be proved by the acknowledgment. It is not now claimed that that objection was ivell founded. (Code, § 93T.)

After the rendition of the verdict, defendant’s counsel moved for a new trial upon the minutes of the trial judge, •and that motion was denied, and the defendant’s counsel ■excepted to the decision. That exception, ás we have frequently held, presents no question for review in this court. It was not taken during the trial, but after the trial was •completed.

When the proceedings leading to the appointment of the committee were introduced, the defendant’s counsel objected "to them on the ground that, on the face of the papers, the court never acquired any jurisdiction of the proceedings. The objection was overruled and the papers were received in evidence. It is now claimed, and quite strenuously argued by the counsel for the defendant, that the proceedings were utterly invalid because no notice of them 'was given to Ann Eliza, the idiot. There are two answers to this objection. The Court of Common Pleas, upon the petition of Ann Owens, the mother, appointed commissioners de idiota inquirendo, and, in the order appointing them, required that previous-notice of the time and place of the execution of the writ should be given to Ann Eliza Owens, and the person or persons having the care of her. It was not necessary that she should have notice of the application for the commmission. Without hearing her and without notice to her, the court could constitute the tribunal which was to make inquiry into her mental condition. In pursuance of the order, a time and place for the execution of the commission were appointed, and a jury was summoned by the sheriff, and it appears by proof contained in the rec'ord of the proceedings that the idiot had notice of the time and place of the execution of the commission. The record does not disclose that she had notice of any of the subsequent proceedings confirming the findings of the jury and appointing the committee. We do not deem it important now to determine whether the proceedings would be absolutely void and a nullity if no notice whatever had been given to the idiot of any of the proceedings instituted upon .the petition of her mother, who had charge of her. They would have been invalid undoubtedly in the sense that they would have been set aside as irregular upon the application of any person who had a right to be heard, as we held in Matter of Blewitt (131 N. Y. 546). But if -notice was necessary, the notice given of the time and place of the execution of the writ was sufficient to give the court jurisdiction of the matter. The person proceeded against by such a writ should have notice of the motion to confirm the finding of the jury and for the appointment of the committee, and if such notice be not given, upon the motion of any person entitled to be heard, a court having jurisdiction of the matter may. set those proceedings aside. But where the person proceeded against has had notice of the vital part of the proceeding, to wit., the execution of the writ, there is no ground for saying that the proceedings are absolutely void.

But there is still another answer to this objection. The Court of Common Pleas of the city and county of New York is, for the purposes of such a proceeding, a court of general jurisdiction (Constitution, art. 6, § 12; Code, § 263, subdiv. 8); and, therefore, to uphold its jurisdiction, it may be presumed that all the proper notices were served upon the idiot, and even that she was present in court at the time any proceeding was taken, in the absence of anything in the record showing that she was not present in court or that the notices were not served. It is one of the maxims of the law that nothing shall be intended to be out of the' jurisdiction of a Superior Court but that which expressly appears to be so.” Hence, though the existence of any jurisdictional fact may not be affirmed upon the record, it will be presumed, upon a collateral attack, that, the court, if of general jurisdiction, has acted correctly and with due authority, and its judgment is as valid as though every fact necessary to jurisdiction affirmatively appeared. (Freeman on Judgments, § 124.) It was held in Foot v. Stevens (17 Wend. 483), that the Courts of Common Pleas of this state are courts of general jurisdiction, and upon a motion for a new trial it will be intended, in support of a judgment rendered in the Court of Common Pleas, where nothing to the contrary is shown, that the court had jurisdiction of the person of the defendant, although there was no averment in the record showing the jurisdictional facts.

This is a collateral attack upon the idiocy proceeding in the Court of Common Pleas. It does not appear from the record that all proper notices were not given, and no proof was offered upon the trial to show that the court did not, in fact, acquire jurisdiction.

Therefore, the objection made by the counsel to the proceedings was not well taken, and it follows that the defendant did not obtain title to the real estate by the deed from the idiot, and that the judgment should be affirmed, with costs.

All concur.

Judgment affirmed.  