
    In the Matter of the Application of Alma Louise Larner. Farmers’ Loan and Trust Company, Committee of the Estate of Alma Louise Larner, Respondent; Alma Louise Larner and William C. Beecher, her Attorney, Appellants.
    
      Inebriate —an application for Tier discharge denied—under-what circumstances•. the fees of the attorney should be paid.
    
    A woman: addicted-to the use of intoxicants was, in a proceeding instituted- by ■1 her business manager, declared incompetent and committed to a sanitarium,.. . At the time she was sent to the sanitarium she was assured ,by her business manager'and an attorney of .high professional standing that, if she quietly submitted herself to" restraint and discipline for one year and" manifested' improvement, an application for her release would then be made.
    
      At the expiration of a year the attorney, acting on the written request of the incompetent, applied for a writ of habeas corpus upon a petition made by the incompetent’s private attorney. The committee of the incompetent person did not join in the application for her release, but entered, a formal appearance. The justice who heard the application found that the incompetent was greatly improved and was “ now a rational and coherent being,” but denied the application upon the ground that she might relapse into her old habits, if she were released.
    The application for her release was made in good faith, and after eminent alien, ists had expressed the opinion that the incompetent had recovered and was fit to be at liberty.
    
      Held, that the attorney was entitled to payment from the property of the incompetent for the services rendered by him upon the application to secure the incompetent’s discharge.
    Appeal by the petitioner, Alma Louise Earner, and by William C. Beecher, her attorney, from an order of the Supreme Court, made at the Kings County Special Term, bearing date the 17th day of September, 1901, and entered in the office of the clerk of the county of Kings, denying a motion for an order directing the committee of the property of the petitioner to pay certain bills for services rendered upon her- application for discharge from judicial confinement.
    
      William O. Beecher, for the appellants.
    
      James F. Horan, for the respondent.
   Hirschberg, J.:

The facts are undisputed. The petitioner, Alma Louise Earner, appellant, was adjudged an incompetent by an order of the Supreme Court on the 18th day of May, 1900, and committed to the custody of Dr. James Ferguson at the Falkirk Sanitarium, Central Valley, N. Y. Her incompetency resulted from alcoholism. The Farmers’ Loan and Trust Company was appointed a committee of her estate, and Henry L. Goodwin the committee of her person. In June, 1901, a writ of habeas corpus was procured on her behalf by the appellant W. C. Beecher on her written request, Aloysius McMahon, her private attorney, making the petition, and after a hearing on the return and traverse of the writ the application for her freedom was denied. The present application is to obtain a direction that the committee of the estate pay the. costs and expenses of the proceeding, and it appears to have been denied, ■ as indicated by the opinion of the learned justice at Special Term, because of a doubt as to the good faith of the proceedings unsuccessfully instituted to procure Mrs. Earner’s release, and because of the belief that the committee of the person was the proper party to apply for such release.

While it is undoubtedly true that the committee of the person is a proper party to apply for the release of an incompetent when in his judgment restraint is no longer necessary or desirable, there is no rule of law requiring the application to be made in his name or on his behalf. On the contrary, the only requirement of section 2017 of the Code of Civil Procedure on the subject is that the application shall be signed “ either by the person for.whose relief it is intended, or by some person in his behalf.” Section 73 .of the Insanity Law (Laws of 1896, chap. 545) provides that “ any one in custody as an insane person is entitled to a writ of habeas corpus, upon a proper application made by him or some friend in his behalf.” And section 2343 of the Oode provides that where a person, with respect to whom a committee is appointed, as prescribed in this title, becomes competent to manage himself or his affairs, the court must make an order, discharging the committee of his property, or the committee of his person, or both, as the case requires.” That notice of an application, based upon the assertion that the incompetent had become capable of managing himself, should be required to be given to the committee of the person .at some stage of the proceedings, may well be conceded, and failure to give such notice, either at the initiation of the proceedings or afterwards, might be an important element of bad faith; but it appears in this case that on the return of the writ of habeas corpus a formal appearance was entered by Mr. Goodwin, and the mere fact that he neither instituted the proceedings nor joined in the application is not a sufficient ground for the denial of the payment of the proper cost-s and expenses.

If the proceedings were characterized by bad faith, the appifca- ■ tian for payment should of course be denied. I am unable to find anything in the record indicating bad faith or even remotely suggestive of it. ■ When Mrs. Earner was sent to the sanitarium she was assured by both Mr. Beecher and by Mr. John H. Piper, then •her business manager and attorney in fact, that if she quietly submitted herself to restraint and discipline for a period of one year and manifested improvement, an application for freedom would be made in her behalf at the expiration of that time. When the time arrived they acted in obedience to her repeated written importunities. The original proceedings for her incarceration were instituted by Mr. Piper, and no ulterior motive appears which could possibly have prompted him to procure her discharge, while Mr. Beecher’s well-known character and professional reputation surely attest the propriety of- his conduct. As an evidence of entire good faith the opinions of several eminent alienists were procured, two of whom made personal examination of Mrs. Earner at the sanitarium before the writ was asked, and the others during the pendency of the proceedings, and all agreed that she was fully restored to self-control and lit to be at large. Upon receiving the opinions of the experts and the written authority requesting the application, the writ was sued out, and although the petitioner’s discharge was refused by the very able and conscientious justice who heard the case, no intimation was made by him that any element of bad faith tainted the proceedings. On the contrary, he wrote that Mrs. Earner was “ greatly improved in that she has been free from alcohol ” and was “ now a rational and coherent being; ” but he feared a relapse to her old habits in case she were released, and accordingly remanded her to continued restraint. The order appealed from, therefore, cannot be supported on the score of bad faith.

It is not claimed that the bills in question are excessive. While they are large, they are all verified and are incidental to the nature of the litigation. The annual income of the incompetent is very large, and no good reason seems to exist why the fraction of it which will defray these expenses should not be applied to that purpose. The fact that the habeas corpus proceedings failed is not conclusive. As the court said in Carter v. Beckwith (128 N. Y. 312, 319): “ The cases show, we think, that no hard and fast rule has been established in this state concerning allowance to the defeated party or his attorney of the costs and expenses of an unsuccessful traverse of an inquisition of lunacy. Where the proceeding is clearly groundless, or vexatious, and is supported by no probable canse, or' is instituted in bad faith, or for the benefit of a third party, clearly no costs should be allowed. But as this exercise' of the jurisdiction of the court to deprive a person of his liberty and property on the ground of lunacy, however necessary, is, nevertheless, the. exercise of a supreme power, and should be surrounded by all reasonable safeguards to prevent mistake or fraud, so, also, where upon a ease presented after inquisition, there is reasonable ground to inquire whether the lunacy still continues, it is highly important for the protection of the rights of the party that he .should be afforded all reasonable facilities for the prosecution of the inquiry, and it cannot, we think, be doubted that the court has the power on an application to supersede the commission, where it is convinced that there is probable cause, or even, in a doubtful case, to make the reasonable costs and expenses of the traverse a charge upon the lunatic’s estate, and this although the traverse prove unsuccessful. Unless this power exists, the direction of the statute that on the restoration of reason and the capacity of the lunatic to conduct his ■affairs, his real and personal estate shall be restored to him would, in some case's, afford but a barren protection.”

The order should be reversed, with ten dollars costs and disbursements, and the motion granted, with costs.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with costs.  