Opinion
December 29, 1905.
Harry T. Weeks, for the appellant.
Edward H. Wilson [ James D. Bell with him on the brief], for the respondent.
This action was brought by a physician to recover compensation for services rendered by him at the request of the sheriff of Queens county, between the 11th day of January, 1900, and the 5th day of June, 1901, as an examiner in lunacy, in examining into the sanity of certain persons who had been committed to the custody of said sheriff as apparently insane. The plaintiff has been defeated in his suit on the ground that his employment by the sheriff was not authorized by law, and on the further ground that the city of New York is not under any express or implied obligation to pay him for his services.
During the period when the services were rendered the original Greater New York charter (Laws of 1897, chap. 378) was in force, and section 662 of that statute conferred upon the commissioner of public charities for the boroughs of Brooklyn and Queens, within said boroughs, all the authority concerning the care, custody and disposition of insane, feeble-minded, sick, infirm and destitute persons which the board of charities and correction of the city of Brooklyn and county of Kings as formerly constituted, and the superintendent or overseers of the poor of the county of Queens, had at the time of the passage of that act.
The Insanity Law (Laws of 1896, chap. 545) in section 68 then contained, and now contains, the following provision: "Any person apparently insane, and conducting himself in a manner which in a sane person would be disorderly, may be arrested by any peace officer and confined in some safe and comfortable place until the question of his sanity be determined, as prescribed by this chapter. The officer making such arrest shall immediately notify the superintendent of the poor of the county, or the overseers of the poor of the town or city, or in the city of New York, the commissioners of public charities, or, in the city of Brooklyn, the commissioners of charities and correction, who shall forthwith take proper measures for the determination of the question of the insanity of such person."
The effect of this enactment, taken in connection with the provision above cited from the original Greater New York charter, was to impose upon the commissioner of public charities for the boroughs of Brooklyn and Queens the duty of taking proper measures for the determination of the question of the insanity of the persons who were committed to the custody of the sheriff of Queens county, and who were examined by the plaintiff. The method of procedure for the determination of that question is prescribed in section 62 of the Insanity Law, which requires, among other things, that the petition shall be accompanied by the certificate of lunacy of the medical examiners, as prescribed in section 61 of the same statute. The evidence upon the trial of the present action shows not only that the commissioner of public charities for the boroughs of Brooklyn and Queens was made acquainted with the fact that the plaintiff was employed to examine persons committed to the Queens county jail as insane persons, but also that some of the certificates made by the plaintiff as an examiner in lunacy under section 61 of the Insanity Law were used by the commissioner as the basis of his application for orders of commitment under section 62. It seems to me that the evidence on this subject is sufficient to justify, if not to require, a finding that the employment of the plaintiff to make those examinations which resulted in a medical certificate of lunacy was sanctioned by the commissioner. If so, the city of New York would seem to be liable to compensate him for his services, at least in the cases of the poor and indigent insane, under section 64 of the Insanity Law, which provides that the costs necessarily incurred in determining the question of the insanity of a poor or indigent person and in securing his admission into a State hospital, and the expense of providing proper clothing for such person shall be a charge upon the town, city or county securing the commitment. That section further provides that such costs "shall include the fees allowed by the judge or justice ordering the commitment to the medical examiners." In the present action it does not appear whether any such fees were expressly allowed by the judge or justice who passed upon the cases of the persons examined by the plaintiff, but the omission to procure such fees, to be fixed by the commissioner of public charities, who must have been the moving party in the legal proceedings for the determination of the mental condition of a poor or indigent person, cannot be held to deprive an examiner in lunacy, acting virtually under the employment of the commissioner, of the right to be compensated for his services.
The proof in this case satisfies me that the plaintiff is entitled to recover against the city, at all events for a portion of his claim, and I, therefore, advise a reversal of the judgment and the granting of a new trial.
HIRSCHBERG, P.J., WOODWARD, JENKS and HOOKER, JJ., concurred.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.