74 N.Y.S. 70 | N.Y. App. Div. | 1902
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
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
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
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.