26 A.D. 164 | N.Y. App. Div. | 1898
On the 26th of June, 1897, Mary A. Lucas was arrested upon a petition made by her son, and committed, under the Insanity Act, to the Long Island Home at Amityville, Hew York.' A few days later a proceeding de lunático inquirendo was instituted and a trial entered upon, which continued until the sixteenth of July following, when the jury, not being able to agree, were discharged and another jury summoned. The second trial was entered upon on the sixth of August following, and on- that day Mrs. Lucas made an application to the court for leave, in resisting the proceeding then pending, to use so much of her own property as might be necessary to employ, counsel, obtain medical experts, etc. The court did not at once act upon her application; and, before it did so, tile second trial terminated and she was found to be incompetent to manage herself or her property by an inquisition which was signed by thirteen of the nineteen jurors. On the twenty-fourth of the following month the court disposed of her application by an order which recited the finding of the jury and directed that she be allowed the sum of fifty dollars, which the' committee of her property (as soon as appointed) was directed to pay to her counsel. The petitioners, who had acted as her counsel throughout the proceedings, refused to accept the sum thus allowed, and, instead, made an application for an order either directing the committee of her property to pay to them a certain sum for services rendered and expenses incurred as her attorneys in defending the proceedings to have her adjudged ail incompetent person, or that they be permitted to bring an action to establish the sainé. Their application was denied, and from the order thus made this appeal was taken.
The question of allowance of .costs in lunacy proceedings has many times been before the court, but this is the first time,' so far as we are able to discover, that the power of the court in this respect has been challenged. The respondent, insists that the only
It is important that an alleged lunatic should be afforded every ’ reasonable opportunity to defend himself in the proceeding instituted to have him adjudged insane; and, if ultimately found to be insane, then the. court has the power to award such sum as seems reasonable %and right under the .circumstances, payable out of his property, to the persons who render services in defending him. In this way it is possible to prevent fraud and mistake. This seems to be the view taken in Carter v. Beckwith (128 N. Y. 319).
The order made upon Mrs. Lucas’ application is in no way. binding upon these petitioners; they were not parties to, and had no. connection with, that application, except as attorneys for her ; they had no standing in court either to appeal from the order or to
"We think that the order appealed from should be reversed, with ten dollars costs and disbursements, and the application granted permit.ting the petitioners to bring an action against the committee of the property to enforce their claim.
Van Brunt, P. J., Patterson, O’Brien and Ingraham, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and application granted.