*1 Sporza Savings Bank. German Statement of 193. case. defendant. In Gillet v. Bank America 549, Where there is Martin, J., says: uncertainty doubt in a words or used meaning phrases contract, for the intent of the as evidenced seeking parties words fact that a used, construction contended for would make contract and unreasonable one of place at the of the other be taken parties mercy into may properly consideration.”
Our is that conclusion, therefore, should he judgment and reversed ordered for the for judgment plaintiff amount 'with costs both upon, courts. agreed
Cullen, J., Ch. Vann, Bartlett, Hiscock and JJ., Chase, concur; Werner, dissents. J., Judgment accordingly. of the Estate Jetter,
Frank as Committee of Ida Sporza, Savings Person, v. The German Respondent, Incompetent City Bank in the of New York, Appellant. Improper Spelling op to Correct 1. Courts—Power Name in Pre- proceeding in a under section 3333a vious Order. Where of the Code Procedure, incompetent of the estate of an of Civil committee committee, appointed, which duly after qualifying,
has been makes payment deposit money of a sum of on demand in savings hank incompetent to the credit is refused the ground that incompetent’s improperly spelled, name was power, court has upon application, correcting to make an order spelling of the name hy stating incompetent the various names under which the said had been known. Incompetent op and Insane Persons—Jurisdiction State over op Formerly Chancery. — Jurisdiction Entrusted to Court Same persons over unfortunate inherent in state within its limits who are deprived faculties, have been of the use of their mental idiots and it is protect community persons from duty the acts of its those who are reason, protect them, guidance and also not under their property, from their own disordered insane During acts. time the early history of the state at the effect that a all it lias by a cases which heretofore been used shall incorporated first in our (N. inviolate forever was remain Constitution Y. Const, 3), per- art. care of lunatics and § of case. Rep.] Y. Statement N. *2 state, the
sons, entrusted to people of the which was vested proceedings with reference Chancery and the and Court of chancellor persons, of the the determination of insane the detention and confinement therefor, appointment a question insanity of committee of their chancellor, prevailed but the custom largely were in the discretion of the conscience, require by jury a trial part, in inform his his order to on doubt, pro- person, of in question insanity a in all cases of the of the of disposal and to the of ceedings taken with reference to his commitment property. his Proceedings —Same 3. Commitment of for Examination Alleged Persons—Right Jury— Insane of Lunatic to Trial Insanity (L. 1896, 515). proceedings 1842 the for the Since Law Ch. lunacy determination of commitment of insane have been and the enactments, governed by legislative culminating Insanity in various (L. 1896, 545). express provisions statute, By Law that ch. of right by jury preserved every to a trial individual committed to a hospital, behalf, any state or that friend in his demand providing proceedings person statute in a asylum, that to commit to an a alleged given, notice to the insane must be unless it is made to appear giving might injurious that the dangerous of such notice person, made, if finding insanity such and that a final order is directing commitment, alleged incompetent, behalf, friend in his in case made, appeal are dissatisfied may with the determination justice to a Court, Supreme order, of the making other than the one who shall question cause a to be try summoned and of such insanity. Incompetent — 4. Persons Wards State and of Property Incompetent. — incompe- An Court Care of person, lawfully tent who has hospital been committed to a state for the provisions Law, insane of the becomes ward of state, Supreme Court, having and also of the which succeeded to the powers power, Chancery, of the Court of has the time, from time to inquire insanity as to continuance of the and also to take charge in preservation incompetent’s the care and property. — 5. Law Section 2323a of the .Constitutional Code of Civil Pro- cedure Not of Section 1 of 14th Violative Amendment of Federal Where, proceeding in a under section 2323aof the Code Constitution. Procedure, providing appointment of Civil for the of a committee of the hospital insane, upon estate of inmate of a state petition for the officer, appoints state the court a committee of the estate of such an inmate, in contention an action such committee to recover certain incompetent, that the question Code in violative of section 1 of the 14th Amendment of the Federal Consti- " providing deprive any person tution that life, no state shall liberty or law,” process property, sustained, without due cannot be where the duly had been in committed provisions accordance with the statute, court, an order ot the since her commitment involved Spobza
10 Sayings Gebman
Statement case. [Yol. determination, judicial compliance Constitution, which is with the and, therefore, deprived liberty process she is not of her without due law, proper authority and as the court in the exercise of its undertakes management property, the care and of her in her behalf and for her bene- fit, deprived she is not thereof. — 6. Constitutional Law Section 2323a of the Code of Civil Pro- 1 of State Constitu- cedure Not Yiolative Section Article sustained, action,' provi- can a contention tion. Nor such an that the sion of the Code is violative of section of article 1 of the State provides Constitution which the trial jury in all cases forever,” heretofore used shall remain inviolate since such section provides Constitution also “a be waived law,” parties prescribed by civil manner all cases and the *3 by preserved charged of trial is to all incompetency with by under Law their complying requirements with the proceedings under The that law are “civil” thereof. within the mean- ing jury may parties so that trial Constitution be waived concerned, incompetent and the must be right deemed to have her waived thereto, appear where it does not that either she or her friends have trial, and is demanded such a where it conceded that she had notice of the Moreover, personal proceedings. to such a trial was statute, and those in and if mentioned have seen fit jury, complaint power trial her debtors have no to waive a cause for sanity collaterally. of her raise the Savings Bank, 172, App. 119 Div. v. affirmed. 17, 1907; April 7, (Argued 1908.) December decided Appeal from Division of the judgment Appellate in the first Oonrt judicial entered department, July in favor of of 19, 1907, submission a con- plaintiff upon section under 1279 Code Civil troversy Procedure. nature of and the so far controversy facts, in are stated materia], opinion. William J. Donnelly, John E. Amend and Alfred 2323a
Amend for Section of the Code of appellant. Civil which the Procedure, committee plaintiff appointed the estate alleged incompetent, unconstitutional it that violates section article of 1 void, Constitu York, the state New which that “the tion provides all which it cases heretofore shall used v. forever.” 13 Wynehamer N. Y. ( People, remain inviolate 11 Sfobza ro. Gebman Bep.] N. T. Points of counsel. N. Y. 153 Lisk,
378 ;
v.
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6
Duffy
People, Hill,
;75 Colon
Procedure
2323a
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Civil
188.)
Code
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it
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that
void,
the United
the 14th
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Constitution
no state shall
States,
any person
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provides
law.
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98
Co.,
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153
Lisk,
194;
Y.
(Colon
Riglander
N.
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531;
Div.
181
Y.
Trust Co.
101;
N.
App.
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109
;
App.
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57
Walker,
App.
Rhine
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356;
Yick Wo v.
118 U.
People
S.
Hopkins,
208;
Pro.
3
Civ.
N. Y. Cr.
Code
lander,
341;
Rep.
§
v.
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F.
15;
Grossman v.
Div.
79
Caminez,
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182
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Woods,
90;
187 N. Y.
v. N.
&
Schnaier
2323a
v.
Section
83;
Marx, 99 N. Y.
People
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182 Y.
153 Y.
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15;
man v.
79
People
App.
the defendant’s
The
of
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N. Y. 195.)
designation
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Ida Jetta
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amendment.
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Joseph Procedure constitutional. 2323a of Code of Civil tion v. D. Co., Div. Trust Co. S. Walker, 4; 57 (Matter App. 3 Div. 665 Matter App. Div. ; Lofthouse, App. Savings Court, Haight, Opinion per of the J. On the 22d day November, one Ida Haight, Jetter an account with the opened defendant, The German Bank New and at the York, date of City there submission was her credit the books standing upon of the bank On the 20th $1,309.72. she was July, 1902, married to Frank Sporza, plaintiff, was subsequently committed Manhattan State at duly Ward’s Hosyfital under the name Island, of Ida an Jetta, as incompetent per- in the manner the State son, provided by Law, where she since has been ever maintained and supported by peo- state as a theOn 23d ple public charge. May, 1906, upon petition superintendent hospital, upon served notice duly upon her alleged incompetent an order husband was entered in upon hearing had, Court committee of her appointing plaintiff the bond estate, duly qualified giving required by of the amount order. so Thereupon payment remaining in defendant’s her on bank was credit demanded him deposit that her and refused name was ground improperly further that section 2323a of the Code Civil spelled; under which the was Procedure, plaintiff' commit- appointed violation tee, Constitutions of provisions and of the United States. this state to'the Upon application was entered order court, correcting spelling the various names name under which she had been by stating think do, This we the court had known. and that power exists for the further no reason bank, withholding the funds reason of variance in her, belonging under which she known. the name or names with reference to the raised, however, con- 2323a of Code of section Civil stitutionality Procedure, and is one of careful consideration much public requires that it has view of the fact force since importance,- *5 several hundred and that committees appointments made which not it, have annually through only has the title to real estate hut passed. personal an Where has follows: incompetent person Haight, Court, per Opinion Eep.] N. T. in manner
been committed to state institution provided and is an inmate law, thereof, pre- petition may sented of the state state officer special on behalf having over the institution where incompetent per- jurisdiction son is or the or confined, superintendent superintendent acting veri- in institution; of said must be writing petition or his fied the affidavit of the attorney, petitioner are true to the best effect that the matters therein stated it must show that the his information or belief; person has or or a committee is asked both, whose property, person to a state institution over which committed been legally he is or of which special superin- jurisdiction, petitioner is at the time an inmate tendent or acting superintendent, must he also state the institution which thereof; admission, last the date of his known of resi- inmate, place name and residence of the husband or if wife, dence, any, if there be name and residence of none, of such person, kin of in this state so far as the next of such person living extent and income of his known to the nature, petitioner; so far as the same is known to or can petitioner, property, be ascertained him. The with reasonable diligence peti- at tion court supreme any special presented held either in the district iii thereof, term which such judicial last or in the district which the resided, person incompetent in which he is committed is or to situated, state-institution court at within chambers such supreme judicial justice to the court of the or district, county county resided at the time of such commitment, person in which said institution is or of the situated. Wotice county such shall be presentation petition personally given and also to the husband if to such or if wife, person, any, next of kin named in the and to the none petition, of the institution which such is an officer charge person such inmate. Upon presentation petition, proof of such the court or if notice, of the service satis- justice may, truth of the facts fied to be stated in such required a committee of the immediately appoint petition, *6 Sporza Savings German Opinion Court, per Haight, of the J. [Yol. or of such both, property, or incompetent person may require further which it or he deem proof necessary sucli One of the making for which appointment.” purposes was enacted provision was to secure reimbursement whole inor maintenance and a state part insti- support tution. (Code Civil Procedure, 2336a.) §
It contended that the of the Code alluded to is violative of the of the State provisions Constitution (Article provide section which the trial in all cases in which has heretofore been used shall remain invio- late and that it forever, is also violative of the provisions the Constitution of the amendment) United States 14th (§ 1, that no state shall provide of his deprive any person without due life, liberty nor property law, process deny within its any person jurisdiction equal protection the laws.
Jurisdiction is inherent in the state over unfortunate persons within its limits who are idiots have deprived use of their mental faculties. It is its duty protect from the acts of those who are not under community, persons reason, and also to their guidance protect them, persons from their own disordered and insane acts. In whence our law idiots and lunatics England, respecting and care of such their derived, custody prop- are part prerogative erty sovereign. By ancient common law were intrusted to who, curators, either the feudal or the lord next of in case kin, being idiot whose was took his land and disability permanent, profits succession, as the next subject obligation support- him but life; in the case of a lunatic ing during reason the was recover his curator simply might given of the estate under custody obligation applying the excess support incompetent, retaining profits with the estate in be returned case of such recovery. the duties of curator were transferred to the Later on whose duty discharged committing king, of his estate to This committees. proper duty Sank. 1908.j Court, Haight, Opinion per Rep.] as a the lord not afterwards transferred to chancellor, *7 of as the his but part equitable king’s delegate jurisdiction, Reeves’ His 6; exercise special (Fleta, jurisdiction. ch. and of vol. Law, Finlason, 2, 12, 193, tory p. English 1 Bl. note Com. 303 3 id. On our “a;” ; 427.) separation from Britain at time much of Great the so Revolution, as formed a was which law, part prerogative king’s in under our of was form vested applicable government, the state trans and enactments was people by legislative ferred should have the care of and chancellor, the safe all and and for idiots provide lunatics, keeping'of their real and estates. lunatics, personal (Act concerning March Laws Revised ch. vol. passed 20, 1801; 1813, 1, Court p. And upon organization this was transferred to it. jurisdiction
The for the care of the insane statutory provision during of our state is somewhat and the early history meager; with reference to and detention confinement of an practice insane and the of a committee some person appointment what uncertain and had sought adjudicated casesand books It was common for the practice. practice next kin of and who had persons become insane, relatives if restrain them and them some violent, retreat or place institution for their care medical treatment. The writ of habeas was- available.to into the cause corpus always inquire of such detention and release such in case were found but if their sane; insane, detention was sanctioned under the state on account of power the neces police them and the from their disordered sity protecting public minds and insane acts. usual was to practice, however,, a writ de lunático which an procure inquirendo, inqui held and the sition was of the mental jury, determined a verdict. disorder of The conten that the verdict of the tion is made not a matter of that was resorted to but chancellor for the right, the conscience of court. In Matter informing purpose a Lunatic John. Ch. Chancellor Wendell, (1 Kent, Spobza Herman Haight, Opinion Court, per 3 Edward after statute in of 2 and reviewing England “ we need not to discuss construction YI, stop says, for the reason that it had not re-enacted or statute,” then The care and state, adopted says idiots confided to this the whole lunatics, court, being control of the and the manner in that con inquisition, trol shall would seem tó on exercised, entirely depend discretion of court. The lunatic into bemay brought court and after made, inquiry by inspection, inquisition as was returned, declared Heli’s Case Atk. 634); the case of this is the course, sanity returning frequently affidavits and the certificates of aided, also, by physicians. *8 on the the execution of the commissioners So, commission, and the have the and examine the inspect (Ex lunatic. An Amb. issue Southcote, parte 109.) may also be awarded to a verdict"at the existence ascertain, by law, or continuance of as was done in the ex case lunacy, parte (11 Holyland 10). Ves. If traverse be tendered and allowed has filed a and taken attorney-general replication issue to trans it, upon course, is, England, undoubtedly, mit the record to the IL have tried at law. B., But as the whole is in this court, jurisdiction subject in either mode, must be ad object, merely informandam and to arrive at conscientiam, conclusion as to the safe existence of fact." In Matter Chancellor Tracy Walworth Paige, 580) “ In this state the care and of the estates of says: custody idiots and drunkards habitual is confided to this lunatics, without restriction or limitation. The manner in court, the control is to be exercised which must, therefore, depend the sound discretion of the chancellor. He direct to inform his he an issue whenever deems it neces conscience, as in other cases. The here has been to award sary, practice an issue all cases where trial instead of proper, a formal traverse. Cas 1 John. e, Ch. (Wendell's permitting 600 It is John. Ch. ; Case, certainly Folger's proper to have cases of doubt to permit by jury party Haight, Court, per Opinion of Eep.] Y. N. either his liberty, he is deprived or his fault.”
his misfortune J., Barb. says: Matter Mason (1 In Harris, the care and state, per- the statute of this By mind, unsound idiots, estates of lunatics, persons sons and is to the court drunkards confided chancery, and habitual or limitation. The manner which restriction without any a matter is thus to be exercised the control entirely given return of discretion. The form inquisition conscience far as it is so satisfy necessary only important in of the If, inquisition, court. coming to enable court adjudge party enough appears within the classesof over whom statute some one of it is sufficient. A discreet exercise has given jurisdiction, vested court undoubtedly requires power of his and the con- before a citizen shall be liberty, deprived of his own evidence most conclusive trol property, him to be a character should be produced, showing the law has this delicate and whose benefit benignly provided trust. But I am that- a case not say prepared important not court evidence be presented might as to the exercise be so clear and would satisfactory justify of a for the without the its protection party summary power *9 this be so or I not, intervention of a Whether cannot jury. it the the law this state is to vest that under enough doubt the as in the case under case when, court with jurisdiction that the the find is consideration, mentally incapable jury party himself his affairs.” or managing governing the that at the time is thus It provision apparent all in which it has heretofore a trial cases effect that by jury forever was first shall remain inviolate used incorporated been the the custom on our Constitution, prevailed, part into conscience, his to a trial chancellor, in order to inform require of a in all of the person, insanity by jury taken with reference doubt, proceedings cases of his and to disposal property. commitment 2 Spobza Gebman
Opinion Court, per Haight, In 1842, 135, an act to chapter legislature passed a state lunatic organize and to the care, asylum, provide maintenance and medical treatment of the insane therein. other it was be Among that no should things provided person admitted to the of a an order asylum court, except upon based a certificate under oath upon two physicians; if such person dissatisfied with the of the court decision he within three after order to one might such days appeal who to call judges forthwith county, required to decide .the fact of his lunacy. chapter By 446 of the Laws of A Law was revised. Insanity was made for the commitment of public private certificate of two asylums upon physicians, of a features of approved by judge court, principal which have now Law, into our incorporated 545 of the it is being chapter Laws in the that, to commit a to an provided proceedings person a notice to the insane must asylum, be alleged given, unless is made to appear judge giving such notice injurious or might dangerous person, which case he make an order with dispensing giving such the reasons order. The notice, specifying to examine the certificate of the medical required judge and such other facts as shall examiners, produced the demand of relatives or next friends to him, until have an adjourn hearing present opportunity then to make a determination in evidence, as to writing and if he be found sanity insanity person; to.make a commitment to the This order is insane, hospital. a final and the statutes further that in order, called provide in his friend behalf, case alleged incompetent, he dissatisfied with the determination made, may appeal than the one Court, other making justice be summoned to shall cause order, try *10 as in same manner the in the pro- such insanity We have committee. thus of a for appointment ceedings to individual com- every a preserved Court, per Opinion of the Haight, Rep.] that his demand or state upon mitted hospital statute. in his behalf, by express provisions friend had ease fails to disclose in this The record proceedings the state of the hospital. the commitment that was law- an commitment we have is All allegation Law. the manner made in provided by fully all that statute We must assume steps required by and was an inmate of the taken that she Man- were regularly committed law. hattan State By Hospital, duly according she became a ward the state. The state, commitment such had her and undertaken maintenance officers, care, its through a ward of the state she also became medical treatment. Although time of the which still had from to time court, ward power her as to the continuance of also take insanity, inquire her the care and She preservation charge property. being maintenance and state, care, custody receiving its the state through superintendent petitioned support, for the of a to the end that it court committee, appointment out be reimbursed of her for the expenses might property her care had incurred for and treatment. This author- of the ized Code alluded which here are to, provisions violative of the claimed provisions Constitutions, Federal. she had State and If been to be both adjudged she has been insane, then no constitutional deprived right; an insane she had a ward become for, being person, Court, which has succeeded powers of her chancellor, property to the control and became court subject management its for She agents appointed through specified purpose. her without due is not liberty deprived proc- as we have she seen, ess of committed law, for, duly with statute accordance order provisions is not of her the court. She for the deprived property, its care in her undertakes behalf and court management her benefit. to the consideration of the are thus com- again We brought it is an for if court, mitment, then, adjudication by *11 Sporza Savings v. German Bank. Court, per Haight,
Opinion, of the J. we have a with seen, is compliance provisions Constitution. The statute and facts we have already Whether the called attention to. in this case a trial her had established insanity actually verdict, we are not advised for we have record, only the admission that she was committed in accordance lawfully with Law. This as we provisions law, for-a seen, have notice, for rea provides hearing upon unless, is sons notice with. stated, dispensed is judge to examine the and such required testimony physicians witnesses as are other before him. He 'then produced make a to determination, and the same is required writing, filed in the manner at to be place specified by If the her friends, statute. incompetent, dissatis any she or demand a fied, and the they may her be determined It to sanity us that jury. appears is a determination. This, effect,, was held in judicial v. the case Trust Co. America State Co.(187 Deposit Safe in which J., 178), delivering of tire Section 2323a court, of the Code opinion says: was added to title VI in with another new sec together tion establish scheme (2336a), whereby steps might instance taken at the of the officers having charge state for the insane to various reimburse hospitals such insti for their for the tutions expenditures insane support had no relatives or friends liable or patients willing their but contribute where the was the support, patient owner to be used to such ought defray In most of the cases these expenditures. contemplated by there would be sections mental express adjudication before the committed the insti patient competency the section omits and, therefore, tution, any provision the court such com adjudication empowers appoint if with the truth satisfied of the facts mittee, required stated in and without petition immediately taking further in the recent case of proof.” Again, People rel. Morrell Dold Y. ex N. relator Court, Haight, per Opinion Rep.] IT. Y. his release writ of habeas corpus procure
obtained confined which he was from Sanitarium, River Orest *12 that he was committed the an insane person, upon ground made The defendant sanitarium without notice. at insane the relator was return the effect that thereto to he and the time he committed sanitarium was to return and to this still insane. A traverse interposed a the defendant asked that be impaneled jury thereupon This of the relator’s insanity. present try and to a trial to submit relator declined by jury, opposed traverse and overruled the dis- Term Special thereupon writ and remanded the relator to custody missed the sanitarium. This order was affirmed Appellate that the and in effect court; Division original holding his was a valid insanity. commitment adjudication is have this case not one where seen, As we alleged relatives in a has been confined insti- by private she has a and is but become ward of the state confined tution ; in state over who can hospital presided by expert physicians motive for detention other than that which is have no her her is in the for benefit. She the state necessary is care her and if whose itself, policy protect possi- disease. The stands in to cure her her state ble place Its it acts True, power king. supreme. through the state officers of and these officers duly appointed may if their and duties. But do, courts, transcend powers has the state are to restrain the created, which open always unauthorized acts of such officers her constitu- preserve A afflicted with a tional disordered mind is rights. person nor are instituted commit such criminal, not proceedings criminal Under asylum proceedings. pro- person “the trial in all of the Constitution cases by visions jury shall remain inviolate been heretofore used for- in all trial be waived civil bfit ; may by parties ever jury seen, the manner law.” As we have cases prescribed by atrial jn’oserved by every charged right under the Law,- with incompetency complying Sporza v. German per
Opinion Willard witli the of that statute. The requirements how- proceedings, ever, such a trial being civil, be waived parties under the concerned, Constitution to express provision have which we referred. In this case Mrs. had the to such a trial she if her right friends so demanded. Neither she nor her friends to have record, appear, demanded si ch a it is trial, conceded that she had although notice of the committee of her proceedings appoint per- son and estate. She therefore, be deemed to have waived must, such a trial. The to such a trial was her personal and those in the statute. mentioned Debtors are not such she or her friends If, therefore, for her saw persons. acting fit to waive determination hy accept *13 the court made as to her then the defendant had no insanity, cause for the raise of her complaint power question in this case. sanity collaterally has No been raised with reference to any irregu- under the Code. Our larity conclusion proceedings with that accord reached Matter Walker App. the Div. effect the of the Code alluded 1), to is not violative of of the Constitution provisions to which has attention been called.
The should be with costs. affirmed, judgment J. seeks to recover sum plaintiff Willard Bartlett, with the defendant bank in the money deposited savings name and on account Ida the Jotter, subsequent account married Frank and opening Sporza, plaintiff, became as known Ida In Dr. William Sporza. May, of the Manhattan Mabon, State at superintendent Hospital Ward’s Island, York, New presented petition district, first Court for the judicial applying appointment of a committee of the estate of Ida Jetta the provisions section 2323 and section 2323a of the Code Civil Proced- ure. The that the above named Ida Jetta petition alleged is an and has been committed to incompetent person lawfully the Manhattan State at Ward’s New Hospital Island, York, Savings ¿Ú Sporza German Opinion per Rep.] N. Y. * * * Law,
the manner State provided * * * that inmate thereof that said Ida Jetta is now an evi- has Bank as $1,263.36 patient that said Ida Jetta bank Ho. and 369,363, denced book * * * no real other property, personal, is now maintained said Ida Jetta people supported by as a the state Hew York in said charge.” hospital public based and a notice motion to be Copies petition of a were served thereon for committee per- appointment at known as Ida Ida otherwise Jetter, Sporza, sonally upon the officer in the Manhattan State Hospital, upon charge thereof and Frank the husband; Sporza, made and entered Frank return order was appointing day the estate of committee of incompetent person upon In this order the name law. security giving required Ida Jetta erroneously incompetent person given error was corrected instead Ida but Jetter, had which the court order undoubtedly power subsequent make. Bank resists the claim which the The German Savings thus now makes to the c'ommittee money appointed deposited that section with it on account of Ida Jetter, upon ground of Civil Procedure is unconstitutional 2323a of Code *14 it assumes to Court to because empower appoint or of an a committee person property without the intervention of or both jury. person York in Constitution How 1777 contained adopted The of trial : provision following preserving right jury “ it in all cases in which hath Trial heretofore been by jury shall in the of Hew York be established and remain used colony of 1821 the form of Constitution By forever.” inviolate “ as The trial was so as to read follows : changed this provision which in all in it has been heretofore used shall cases by jury This same as inviolate forever.” remain retained in the Constitution having contained present 1894, of 1846 and conventions (Const. the constitutional 1, In Wynehamer (13 art. 1894, People 378, 427), 2.) § 24 Savings Bank.
Opinion per force, case which arose while the was in Constitution 1846 ” “ it said that in was word heretofore the constitutional meant 1846 before provision relating by jury not in could order to limit its be carried back 1777 meaning were and confined to the cases at that earlier period triable this rule of construction by jury. Applying whether would be sufficient to in the ease inquire present only the trial as a appointment prerequisite if find committee of a lunatic in we was use but 1894, prior that such a trial of Mew was in the colony invariably required York and in Constitution England it would follow that section 2323a of adopted necessarily Code of Civil Procedure unconstitutional if that section must be construed as of a com- authorizing appointment in the mittee absence of a prior finding whose is to be affected is party incompetent. In there has been considerable discussion as England what is the true of the Crown origin authority to idiots and lunatics. said respect Story, writing that the treated as a jurisdiction usually special jurisdic- tion for derived from the many purposes special authority the Crown its manual to the chancellor sign personally as and not to him as chancellor as belonging sitting “ Court of But he concludes that Chancery. Court of deemed have had as Chancery may properly originally, as Crown general delegate authority parens not to have the patriae, only custody protection also infants, but of idiots and when lunatics, have no other Equity guardians.” Story’s Jurisprudence [13th in this has suc- ed.], legislature country 1362.) § ceeded to the reference to king parens patriae idiots lunatics. Church v. United (Mormon States, S.U. Blackstone discussed the of incom- entitled the petent persons chapter Revenue, King’s and also under the title Suits *15 He “ Crown.” by says last branch of the revenue consists in ordinary king’s of idiots, from whence we shall be led custody naturally Spoeza v. German per Opinion Bep.] N. Y. ” in reference also the lunatics; consider custody “ the old in such he adds: common cases By procedure concern-
law is a there writ de idiota (of inquirendo inquiring not; a man an idiot or whether be inquire ing idiot), if a twelve men must tried ; and, which by his absolute him idiota profits find (an idiot), purus his and the lands, custody person may granted interest who has to obtain to some subject, enough king as idiots them.” In reference to lunatics from distinguished “ The a he as follows : method states practice proving him an is to that of non similar very compos proving to whom, authority idiot. The lord chancellor, by special is intrusted, and lunatics from the idiots king, a in nature or commission information, grants upon petition de into the of the writ idiota inquire inquirendo, party’s and if he be non he state of found mind; compos, usually a of his with suitable commits care allowance person, is to some then called his com- friend, maintenance, Blackstone’s Com. It will 304, 305.) mittee.” (1 writ de that in reference idiota be noticed i/nquirendo, states that it must be tried a twelve Blackstone where he is however, In another place, discussing men. as of the common forms of suits of office one inquisitions that such matter Crown, he says inquiries concerning any of lands or tenements, that entitled king possession a “is num- done no determinate chattels, or by jury goods less, either or more.” twelve, Blackstone’s ber ; being Com. 258.) states the mode of Pomeroy
Professor exercising jurisdic- mind in unsound tion over follows: England lunatic friend of addresses Some alleged petition or other lunacy; chancellor personally, judge special issued, thereupon commission directing inquisition judicial is made means lunacy, inquisition alleged —-a the issues trial of their find- jury; jury, regular as it stands and the so verdict, ing unimpeached, long is not conclusive as to the status of superseded, inquisition *16 German Bank. Opinion per Bartlett, Willard J. [Yol. the return commission and party. Upon inquisi- a if the is found to be tion, lunatic, the chancellor or party in a in committee nature of judge lunacy appoints over and of the This guardian person lunatic. property in his as committee, character trustee, under the is, course, and control of court of supervision Pome- chancery.” true roy’s It is he Equity Jurisprudence, 1312.) supple- § ments this a statement description procedure by over special jurisdiction lunatics is not the courts of generally possessed by equity as a United States inherent part equitable original but that not a material to con- jurisdiction; sidered inasmuch as our here, is to purpose inquiry ascertain the in this state at the time of the prevailing usage of the several Constitutions the' adoption guaranteeing in all cases which it has heretofore been by jury ; used and it far as I have so been able to discover, appears, that the of our courts in the exercise of their usage statutory over idiots lunatics has here- equitable jurisdiction always tofore been accordance with the former English practice laid in the authorities down cited.
Further on method light English procedure may ord found Shelf on where it is said that Lunacy, when the was informed that a who had an lands was idiot king or the ancient mode of lunatic, order to ascer- proceeding tain the existence of the fact of or was to idiocy lunacy peti- tion lord chancellor ain suggesting idiocy lunacy par- ticular issue a writ sheriff person, thereupon escheator of county try by exami- personal whether the nation was true or not. party suggestion (Shelford on inquisition Lunacy, 79.) required seals be under the of twelve otherwise the officer jurymen, taken whom was was liable under the statute (1 Henry one c. hundred VIII, penalty (Ib. pounds. It manifest that in a subse- England, up period long York Hew Constitution of quent adoption was essential to establish the status of a- verdict y. Savings Srorza Opinion per Rep.] N. T. either as idiot or lunatic. to be incompetent
person alleged *17 in the House of Lord Lords, in a case Chan in 1820, Thus, that the it to Crown declared cellor Eldon unquestionable for not did power, except temporary in possess England itself care of individuals, of any taking purposes, or their on the their as to property, ground either persons mind, of unsound without verdict of a that were 2 Wilson & It Graham, Shaw, v. 481, (Bryce 517.) jury. since in a been effected true that change England by Act an that under of 1890 statute, Lunacy inquest a in a without held before where lunacy judge jury lunatic does not demand or the one, the alleged judge that examination he is not satisfied personal by mentally a wish in that form and behalf express competent that should unnecessary inexpedient inquest appears Vict. 91, This altera chap. (53 be before jury. 92.) §§ cannot affect in the practice question tion English where our Constitution trial here, requires consideration by in which it has all heretofore been cases used, jury of course, condi depending, answer question in this state or before the the law of colony tion of adoption the Constitution. it has held that states which those constitu
In a trial does not to casesof by jury apply tional right lunacy differs from the Constitution used in the the language this state. Thus, where Wisconsin, Constitution that the trial shall right provided jury Constitution to all and shall extend cases at inviolate law without remain it was the amount held that a controversy,” pro regard of a for an for insane appointment guardian ceeding at that at a case law, not time when was was for power appoint adopted guardians Constitution in the was vested judges insane probate in a to determine the without jury act calling might v. 6 Wis. Babcock, So in Iowa (Gaston 503.) of insanity. that the constitutional of trial held right by jury it has been to criminal accusations prosecutions only applies Spobza Gebman Opinion per offenses the criminal an law and that against inquest lunacy not criminal re 82 Ia. (In Bresee, proceeding. 573.) And in an Mississippi inquisition lunacy six men was held to be constitutional because inquest before a of that number was statute at the authorized time when the Constitution was v. Buchanan, adopted. (Fant 17 So. 1 cannot see how Rep. these decisions or others of like affect the construction to be purport given our own That Constitution. guaranty Constitution not this state does by jury apply to criminal cases but embraces other merely proceedings determined court Colon Lisk expressly Y. and is assumed N. the discussion in the case of *18 Malone Sts. Peter and Paul's Church Y.N. (172 269). of Constitution New that the of Jersey provides right trial shall remain inviolate. In that jury state to prior the number of the 1887 who sat trial of the issue jurors lunatic, of the case an incompetency varied alleged twelve from to Thus, Matter twenty-three. Runey N. J. Dey concurred in the (9 Eq. 181) twenty-three jurors and in Matter N. J. finding lunacy Vanauken (10 were and sworn Eq. twenty-one jurors twenty signed the return. In 1887, however, an act legislature passed the sheriff to summon twelve instead directing only jurors to into and find truth inquire matters twenty-four in a involved commission competence relating alleged idiots and It lunatics. was contended in the case of De Hart v. Condit N. J. that the act violated Eq. 611) right trial the 27ew Constitution. In jury guaranteed Jersey that case consisted twelve men all of whom only concurred The Court of Errors and finding. Appeals “ refused to disturb the If we said inquisition. assume,” “J., that the constitutional provision applies pro Dixon, of this still this statute does not nature, ceedings infringe upon it for reason constitu prior adoption tion had no more than twelve party I He cites the statements of jurors.” Blackstone, Spobza v. Gebman Opinionper Eep.] Babtlett, Willabd number have that in and declares referred, practice than over not less twelve nor twenty-three jurors considered adequate. and
A careful statutes examination of New York leaves no doubt decisions my bearing subject then mind that and since Constitution prior until enactment 2323a of the Code of Civil of section in this have not assumed the courts state Procedure, juris- diction or estate of committee appoint absence of incompetent person, finding by in the nature of a writ lunático de proceeding inquirendo. “ 30 of the Laws By chapter provided have the the chancellor shall care and safe provide of all idiots and lunatics and of their real and keeping per- estates for their for the maintenance, sonal also maintenance families of such lunatics and educa- of their children tion out of estate of such idiots personal lunatics rents and the of their real estates profits the amount and value of the respectively, having regard and shall take that the same shall not care be wasted or same vised Be Statutes which took effect on destroyed.” By same re-en- 1,1830, January substantially extended so as to embrace not idiots and acted; but only *19 but of unsound mind and lunatics, persons persons their in own affairs conse- incapable conducting shall drunkenness.” B. S. After the of habitual 52.) quence of 1846 the act of Constitution judiciary adoption to the new then transferred Court Supreme jurisdiction and exercised old Court and Supreme jiossessed chancellor and vice- of Chancery, Court including The act to revise of 1847, chancellors. (Laws chap. 280.) of the state statutes and consolidate relating of the insane in conferred and care passed terms over Court upon jurisdiction express of all be inca- idiots, lunatics, who shall and custody care their own of habitual affairs of conducting consequence pable of their real and estates. and drunkenness personal (Laws BO
Opinion per Willard of 1874, This chap. was re-enacted in section 2320 of our however, Code Civil Procedure present which, “ extended the still further to cases of jurisdiction imbecility from old or loss of or arising age memory understanding other cause.” The New York in this class of cases procedure stated Barbour’s Practice revised clearly Chancery (2d vol. edition, 2, also his p. 228), Judge Willard treatise on which has reference Equity Jurisprudence special ¡New to the law of York. (Willard’s Jurisprudence Equity first edition], The was to pp. etc.) step apply [Potter’s commission in the nature a writ de lunático inqui The rendo. was ex but it had to be petition parte presented to the court on a motion The commission issued day. regular in the thereupon same as that form substantially prescribed the chancellor in drunkards in the habitual respect to the rules of Court of After a cer appendix Chancery. tified commission had been served com copy upon missioners were to the sheriff to issue required precept where the commission was to be executed county him to cause a men of the lawful requiring jury good them into the matters county appear inquire which should them virtue of things charge given the commission. Under this the sheriff summoned precept not less than twelve nor more than twenty-four jurors; and Barbour states that no be taken could inquest oaths of less than twelve was then jurors. testimony taken as a trial at law, says Judge commissioner should thereafter submit the matter form of the law jury charge, stating applicable to the case and the facts if but necessary recapitulating without on either side. Twelve must arguments one and if twelve other, cannot agree way agree must so their return commissioners report be made found the If the accordingly.” inquisition himself or lunatic to be alleged incompetent manage *20 it was still within to set it the discretion of the court affairs, aside and refuse to a committee. appoint Opinion per Rep.] if. Y. the I referred and have to which many
The statutes as Court the Supreme decisions involving jurisdiction the over the Court Chancery the successor discussed with reviewed and learning lunatics were estates of f in Matter L. Allen Justice Cornelius Mr. ability by o Prac. an lunatic Howard’s (8 Reports, Payn, Hugh alleged but a decision, that this is Term It true only Special 220). it was that the who rendered is to be remembered judge a careful con a of this court. After member subsequently the he reached conclusion sideration of whole question a had com Court no to appoint jurisdiction a issued and mittee of a lunatic commission had been a an returned with of lunacy by jury. inquisition finding what rendered in 1852. It shows This decision was clearly to a had been subsequent adop up period practice of 1846. I cannot find that there tion of Constitution since, except practice any change of the Code Civil court is under section 2327 permitted, that a commission issue, instead of Procedure, ordering, that the of fact direct question arising competency lunatic be tried before a at a Trial alleged jury seems to been to Term. have practice unvarying require trial as condition of a precedent jury appointment or estate of a committee for lunatic. person Reference is made Matter Wendell Johnson’s and Matter Tracy (1 Paige, Chancery, 600) that the verdict of the authorities proposition jury is taken this character inform con cases of merely court and not of an science of the absolute recognition of a whose on assailed; part competency from a arises, this view I but think, misapprehension under in those cases. In both of them discussion question had been had had already inquisition and the found the to be party should be allowed consideration was whether he subsequently and have the issue of traverse lunacy again inquisition court in for trial. The sent observations *21 82 Savings v. German
Opinion per Willard Bartlett, J. can these and similar have no cases, to therefore, application here. The same true is to question presented regard Matter Mason heard Barb. before Judge Harris 436), at Term I cannot with concur Special although 1847, had no to the motion him, suggestion, relevancy that a be case in which the evidence would presented might be so clear and satisfactory to exercise of the justify of the court to a citizen of power summary deprive liberty without of a intervention jury.
In whether a considering finding incompe- is a condition to the tency by precedent appointment of a committee it between important distinguish pro- end view instituted ceedings having proceedings exercise of for the restraint police power temporary anof insane commit- person prior appointment any tee. It not for essential, course, welfare only themselves but for the of their incompetent persons protection relatives and the at should community large authority exist somewhere restrain those evidence manifesting to the end that treated for the insanity, they may properly a cure and those who purpose effecting protect maybe their violence at hands. endangered by At common law even not one, relative, though might to restrain interfere an insane dangerous himself others. v. A (Brookshaw Hopkins, Lofft, 243.) maniac be restrained dangerous might always temporarily until could he released arrested war safely by judicial rant or committed to tinder an asylum legal authority (Kel eher 60 v. N. H. but when the Putnam, immediate 30), safety himself lunatic and others had provided interference ended. H.N. (Colby Jackson, of our Law (Laws provisions 545, art. to the commitment chap. III) relating alleged similar medical certificates and incompetent persons ujion are the same effect provisions statutory generally designed common as was at object sanction legal accomplished law the interference of to restrain lunatic private persons Spobza Bans. Opinion per Rep.] harm himself him from or others. doing order to prevent to be insane be committed this end To persons alleged *22 and treatment of such for the institutions patients a or of Court an order made by Supreme justice upon a record. commitment is based of of Such court other judge “ a such to be insane an order person upon upon adjudging medical two examiners of made certificate qualified lunacy The 545, (Laws chap. Insanity in lunacy.” § for an further from such order (ib. Law appeal provides a Court other than the Supreme commitment justice “ shall cause a order, thereupon jury making justice for the summoned as in to be case appointment proceedings insane and shall of a committee for an person, try ques- in the same manner as tion of such proceedings insanity a committee.” for appointment are The thus for Law provided proceedings Insanity an a substitute those in no wise as for designed upon inquisition The Law lunático de inquirendo. purposes Insanity a an for commitment are order merely, although protective “ as such thereunder described person adjudging a at The order is not all, insane.” strictly judgment speaking not the status of the to be does affect for person alleged a similar This held statute insane. has been regard where it was said : The order commitment Massachusetts, com- person settles nothing conclusively against finally him It does not take from the care or control of his mitted. It is not appointment equivalent guar- property. him. entitled as a matter of insti- over He is dian right under the statutes, determine tute judicial proceedings ” his confinement necessity propriety (Matter of 169 commitment Mass. Dowdell, 387.) notwithstanding thus committed remains Law, under Insanity service civil Civ. Pro. liable to 427), process (Code § him until a committee has been appointed lawfully remains unaffected. to control his legal right made the certificate so-called The upon adjudication examiners in affords warrant medical lunacy merely judicial -y. Spobza Gebman
Opinion per treatment for the detention and alleged incompetent a state or other institution licensed the state for hospital the care and treatment of the insane. proceeding no reference to the of a committee. If a com appointment mittee is to be must be attained sought appointed object under the of the Code of Civil provisions Procedure, which, we have are derived from seen, practice existing state from the earliest times require finding either an at a incompetency by jury inquisition Trial Term of the Court. From no of view point can the of a trial from an order privilege appeal of commitment Law be as the regarded equivalent guaranteed by *23 ex v. Constitution. rel. Ecker son Trustees Vil. (People 151 N. Y. It is be Haverstraw, that noted 75.) Law does not allow the alleged incompetent person to demand a trial as a matter of jury upon appeal right. Before the heard can be at all the must appeal appellant make a or a bond for the deposit costs give payment if the order of is commitment appeal sustained. (§ 63.)
Another on this branch of the case point be requires It is that this noticed. court has than more once suggested that our said constitutional relative by jury to a referred common-law of twelve men. ex jury (People Justices, rel. v. 74 N. Y. etc., 406; v. Murray Dunn, People N. That statement 157 Y. in accurate perfectly it in which was but criminal cases I cannot find in it made, any a which amounts to denial of the if that thing proposition to a trial a such as was summoned right jury customarily under a commission lunático de existed before inquirendo it is not Constitution, the funda equally preserved by law. It is further be mental observed in such a jury, be summoned, even though twenty-three might concur twelve was order to rence of constitute a necessary legal finding. not think there is
I do of Trust anything opinion Matter of Goldsticker. Rep.] IT. T. Statement case. Co. America State Co. Deposit Safe conflict with the views here necessarily expressed. conclusion is that if 2323a section Code of Civil
My Procedure is intended an who apply incompetent person has been committed to state institution without an inquisi- tion in the executed usual manner without jury trial of the issue of it then court, incompetency it unconstitutional. If, however, construed as may apply- have thus been ing only adjudicated incompe- tent of a for whom but no committee finding yet of no appointed reason, (by example, at discoverable the time then it being inquisition), may as constitutional. I think it be thus regarded con- strued and ; hence as is not made to appear present case of Ida had not been ascer- incompetency tained and declared inquisition by jury by jury at Trial Term of the it must he Court, assumed that such was the fact. below Upon assumption judgment and must be affirmed.
Gray, Edward T. Hiscock, JJ., Werner Bartlett, concur with J.; J., concurs Haight, result in with whom Ch. opinion, J., concurs. Cullen, affirmed.
Judgment *24 In the Matter of the Probate of the Will of David
Goldsticker, Deceased. et al., Appellants ; Louis Goldsticker Samuel Goldsticker et al., Respondents. judicata Rejecting — Refusing Ad Decree Will—Res Will Proceeding Thereof
Probate on Parties Conclusive in Contro- Relating Personalty—Competency versies and Effect of Such Decree A decree surrogate rejecting Evidence. will probate refusing properly ground thereof the will not executed, deceased, thereof, and that the time of the at the execution will, mind and unsound to make conclusive on probate proceeding relating per- in all controversies parties