147 N.Y.S. 286 | N.Y. App. Div. | 1914
On June 27, 1910, relator reported sick to a police surgeon and continued so to report until about July twelfth, when the surgeon sent him to Fordham Hospital and later to the Psychopathic ward at Bellevue. On July twentieth, on petition of the deputy commissioner of charities, the certificate of two medical examiners in lunacy and the affidavit of relator’s wife, under proceedings taken before a justice of the Supreme Court in pursuance of the Insanity Law (Gen. Laws, chap. 28 [Laws of 1896, chap. 545], art. 3, §§ 60-63, as amd.; revised by Consol.
The relator remained in the Central Asylum until October thirtieth, when he was discharged as cured. After his discharge he applied for a peremptory writ directing the commissioner to restore him, among other things, upon the ground that he had had no notice of trial or hearing and that he was not insane or of unsound mind so as to unfit him to perform full police duty. Relator’s motion for a peremptory writ was denied by the Special Term; the learned court, while expressing a doubt as to the validity of the action of the commissioner in dismissing the relator from the force, concluded that at least
“(1) Was the relator * * * duly adjudged insane and a proper subject for custody and treatment in an institution for the insane, and was he committed to the Central Islip State Hospital at Central Islip, N. Y., an institution for the custody and treatment of the insane, by an order made,” etc.
“(2) Pursuant to said order * * * was the relator * * * committed to the Central Islip State Hospital * * * on or about July 21, 1910, and did he remain there * * * for treatment until on or about October 30, 1910 ?”
Both the foregoing questions the court directed the jury to answer in the affirmative, but the court thereupon denied the defendant’s motion to direct a verdict in his favor. The court at the request of the relator submitted to the jury the further question whether the relator on September twenty-second was of unsound mind so as to be unable or unfit to perform full police service. The jury answered this question in the negative, and their verdict was set aside by the court.
I think the verdict was properly set aside and also that the court erred in refusing to direct a verdict as requested by defendant. At the time of his examination by the three police surgeons on September sixth, and as well on September twenty-second, when he was dismissed, relator was confined in an asylum in pursuance of a commitment issued pursuant to law. This commitment was an adjudication of insanity. (Sporza v. German Savings Bank, 192 N. Y. 8, 20, 22; Banker v. Banker, 63 id. 409, 413), and the relator being actually confined as an insane person at the time of his dismissal, it necessarily followed that he was then unable to perform any police duty whatsoever. He was thus judicially determined to be directly within the provisions of section 300 (see post), and his dismissal was justified.
It follows, therefore, that the order of the court below setting aside the verdict was right, and the order should be affirmed, with costs and disbursements.
Ingraham, P. J., Clarke, Scott and Dowling, JJ., concurred.
Order affirmed, with costs.