Brayman v. Grant

130 A.D. 272, 114 N.Y.S. 336, 1909 N.Y. App. Div. LEXIS 188

Opinion

Per Curiam :

This judgment is first challenged upon the ground that the county judge had no jurisdiction to grant the order of commitment, by reason of the failure of the service of notice either upon the plaintiff or upon his wife, who was residing within the same town. Section 62 of the Insanity Law (Laws of 1896, chap. 545, as amd. by Laws of 1903, chap. 146) provides in case of a petition by the overseer of the poor, that notice must be served both' upon the person alleged to be insane and also upon the husband or wife, father or mother or next of kin of such alleged insane person, if there be any such known to be residing within the county. It is further provided, however, that this notice may be dispensed with by the. judge who issues the order, and it only requires that he shall state his reason for dispensing with the personal service of such notice. There is nothing in the.statute stating for what reason service may be dispensed with. That seems to be left to the discretion of the magistrate. In this case the county judge dispensed with personal service upon two grounds:. First, that plaintiff’s insanity was so pronounced that it was unnecessary to give notice, and, second, that notice would only tend to excite him and aggravate his, trouble. Without specification in the statute of the ground upon which the magistrate may dispense with notice, we think that it cannot be said that he has failed to state sufficient reason within the discretion which seems to be given to him. It is further contended that the certificate dispensing with service is in the alternative, and provides that the judge has dispensed with, personal service or has directed substituted service upon the persons “ hereinafter named.” It is claimed that such a certificate is a nullity because in the alternative. But these certificates . are required to be made upon the blanks furnished by the Lunacy Commission.

* If substituted service is directed, the statute ϯ requires that the person shall be named upon whom such substituted service, shall be made. Inasmuch as no person is named upon whom substituted service is to be made, it is apparent that the form of the certificate was a clerical oversight on the part of the judge, and that he intended in fact to dispense with personal service, both upon the plaintiff and his wife.' But it is contended that the magistrate had no right to dispense with personal service, and that the provision of section 62 was intended to allow the magistrate only to shorten, the time after such personal service should be made before the hearing, and that plaintiff’s constitutioual rights are evaded by ordering his commitment without his- right to be heard before the court making the order. But such has been the law in this State for many years. It seems to arise from the necessity of the situation. The right to commit without - personal notice has never been held to take from an alleged insane person his constitutional rights, and to so hold would greatly embarrass the administration of this branch of the law and endanger the safety of the community. (See Matter of Walker, 57 App. Div. 1.) We cannot agree, therefore, that the statute may not provide that personal notice of the application may be wholly dispensed with without impairing the constitutional rights of the alleged lunatic.

Again, plaintiff contends that there is no finding here that he is a dangerous man in' the community, as seems to be required by sections 66 and 68 of the Insanity Law. This commitment, however, was made under section 62 of the law. In that section there is no requirement that the alleged lunatic shall be found to be dangerous before the order can be made. The application is made by the overseer of the poor of the town in which he resides. It may be presumed that the alleged lunatic had not sufficient means with which to provide for his care, and that it was a proper case in which the overseer should act. Under section 62 all that is required to authorize the commitment is the certificate of two physicians that the alleged lunatic is a proper subject for treatment and care in a State hospital. Section 66* assumes to provide for a different class of persons — those who are of sufficient means to care for themselves, or who have relatives who are able and willing to maintain them. The heading of the section indicates that it provides for “ liability for the care and support of the insane, other than the poor and indigent.” Section 68 provides especially for the dangerously insane. While sections 66 and 68 may both overlap section 62, it is evident that they are not intended to add to the requirements of section 62 any further jurisdictional facts than are therein declared.

Error is further claimed in the refusal of the trial judge to allow the plaintiff to ask of his own witness, after reading a long statement made by the witness in an affidavit, whether that statement was true. The practice is well settled that one cannot cross-examine his own witness. If one having called a witness is surprised by liis testimony, he may call his attention to inconsistent statements theretofore made by the witness and ask him if his recollection is thereby refreshed. Even then the form of the question is largely in the discretion of the court. The statement read from the affidavit or verified answer contained a number of facts, and it was not an abuse of thfe discretion of the trial judge to refuse to allow the attorney to ask the ivitness whether that statement Avas true. A further answer to tins claim of error would seem to be that the matter claimed.to be shown by the question Avas immaterial, and if shown could not affect the result. We have carefully examined the record in this case and . are led to believe the trial judge was right in dismissing the complaint.

The judgment should, therefore, be affirmed, Avith costs.

AH concurred, except Sewell, J., not voting.

Judgment affirmed, with costs.

See Insanity Law, § 60.— [Rep-,

Id.. § 68.—[Rep.

Amd. by Laws of 1900, chap. 380.— [Rep.