
    In the Matter of John Baird.
    
      (Supreme Court, New York Chambers,
    
    
      Filed March 1887.)
    
    1. Lunatic—Inquisition of jury merely advisory to court and may be SET ASIDE FOR ERRORS.
    The inquisition of a jury in a lunacy case is merely advisory to the court, and may be set aside for errors in the conduct of the trial, and improper evidence.
    2. Evidence—Of attending physicians inadmissible—Code Civil Pro., §§ 834-835.
    Sections 834-835, prohibiting testimony of attending physicians are applicable to this proceeding; it was error to admit the testimony of the physicians, who attended him during his confinement in the asylum.
    The commissioners appointed in this matter to inquire with the aid of a jury as to the alleged incompetency of John Baird to manage himself and his affairs by reason of lunacy, returned the inquisition of the jury, in which fifteen of the eighteen jurors concurred in the finding that the said John Baird is incompetent. One of the commissioners and three of the jurymen did not concur in the inquisition.
    A motion is now made in behalf of the petitioners in the proceeding, to confirm the inquisition and for the appointment of a committee. At the same time a motion is made in behalf of the respondent to set aside the inquisition. The latter motion was made on the report of the proceedings before the commissioners, the affidavits of Robert EL McClellan in regard to these proceedings, of Alexander E. MacDonald, M. D., as to Baird’s condition and one of the respondent himself.
    The respondent had, up to the day of the first hearing before the commissioners, been in close confinement at Sandford Hall, an asylum at Flushing, Long Island, but from that day to this has been entirely free from control as to his conduct and residence.
    Upon the trial the evidence largely consisted of testimony of medical attendants at the asylum and physicians employed by the petitioners to examine the respondent. The evidence of the physicians was objected to as incompetent under sections 834 and 835 of the Code of Civil Procedure. In behalf of the respondent, there was also medical testimony as to his soundness of mind, as well as that of laymen long acquainted with him. It was claimed that he was subject to certain delusions, and that he was consequently a lunatic, and therefore incompetent to manage himself and his affairs. It was proved, however, that he had managed himself and his affairs with perfect propriety from the time of his enlargement from the asylum.
    
      Sullivan & Cromnjoell moved to confirm the inquisition. Section 834 of the Code, prohibiting testimony of attending physicians, is not applicable to this proceeding. Pierson v. People, 19 N. Y., 424; Edington v. Mutual Life Ins. Co., TT id., 564; Allen v. Public Adm’r, 1 Bradf., 221; Staunton v. Parker, 19 Hun, 55; Fraser v. Jennison, 42 Mich., 206. Unsoundness of mind exists when there is a delusion. Riggs v. Am. Tract Society, 95 N. Y., 511; Seaman’s Friend Society v. Hopper, 33 id., 619; Boughton v. Knight, L. R., 3 Prob. & Div., 68; Clapp v. Fullerton, 34 N. Y., 190; Boswell on Insanity, 11.
    
      John E. Parsons, for respondent.
    The testimony shows that Mr. Baird is competent to manage himself and his affairs. If a delusion exists, it is immaterial, not affecting his conduct. Bonard’s Will, 16 Abb. Pr. (N. S.), 128; Jones v. Hughes, 15 Abb. N. C., 141. There were many errors in the charge of the presiding commissioner. The proceeding should be dismissed.
    
      Robert H. McClellan, also for the respondent.
    There was no evidence of incompetency since December, 1882. The evidence establishes competency since that time and at the present time. It was error to admit testimony of the attending physicians. Code, § 834; Edington v. Mutual Ins. Co., 67 N. Y., 185; Edington v. Ætna Life Ins. Co., 77 id., 564. The decision of Surrogate Bradford, Allen v. Pub. Admit (1 Brad., 221) has never been affirmed, but has generally been followed. Pearsall v. Elmer, 5 Redf., 131; Whelpley v. Loder, 1 Dem., 368. The rule applies to testamentary cases. Westover v. Ætna Ins. Co., 99 N. Y., 56; Renihan v. Dennin, 38 Hun, 270. This last case has been confirmed in the court of appeals. See 4 N. Y. St. Rep., 261.
    There are two medical schools on insanity. Qne saysr One clear, unmistakable delusion warrants the certificate of lunacy and consequent confinement. Wharton & Stille on Mental Unsoundness, vol. 1, § 379. Opposed to this is: Ho departure, however great, from ordinary rules of society; no unreasonableness of belief, nor extravagance in conduct or behavior is alone conclusive evidence of insanity. Buck-ham on Insanity, 1883. If a delusion is shown to exist, it must also appear that it renders him incompetent. Riggs v. Am. Tract So., 95 N. Y., 503.
   Donohue, J.

—A full and careful examination of the case fails to convince me that the proof shows the party incompetent to manage himself and his own affairs; and that the report should be confirmed. It is clear also to my mind that there was error in admitting the testimony of the doctors attending him, and which was objected to.

Motion to confirm denied and proceeding dismissed.  