p. 303Court on. the 31st day of July, 1906, striking out from a . decree theretofore entered in said court the provision, directing the petitioner, Richard W. Hurtaugh, to pay costs to the said Sarah A. C. Hurtaugh.
JRa/nsom JET. Gillet, for the appellant.
John H. Gleason,.fox. the respondent.
This was an application made upon the petition of Richard W. Hurtaugh for an order, to commit his wife, this respondent,. Sarah A. C. Hurtaugh,' to a hospital for the insane. The petition was accompanied by the certificate of two licensed examiners in lunacy, as prescribed by the-statute. Upon the hearing before the -surrogate the.petition was dismissed, and in the decree dismissing the petition costs were charged against the said Richard W. Hurtaugh in the sum of $111.90. Thereafter the said Richard W. Hurtaugh made a motion before the surrogate to correct the decree by striking ■ therefrom the provision as to costs. This motion was granted, and from the order granting this motion the respondent in the proceeding here appeals.
By chapter 545 of the Laws of 1896 the laws regulating proceedings in cases of insanity were revised. By section 62 .of the said Insanity Law the proceedings to determine the question of insanity were prescribed. It was therein provided by whom a petition could be presented ; for the certificate of two qualified physicians before the commitment should be made, and for an order of commitment thereupon. This section was amended by chapter 146 of the Laws of 1903,, but these provisions ■ remained unchanged. By section 63 special provision is made for an appeal from that order of commitment. The appeal therein provided for is not an ordinary appeal from a final order in a special proceeding, but is an appeal to a justice of the Supreme Court, who shall cause a jury, to be summoned, as in case of proceedings for the appointment of a committee of an insane person, and the question of the insanity of the alleged lunatic shall be there tried. By section 64 provision is ma.de for the payment of certain costs of the proceedings by the town, city or county of the lunatic’s residence and it is therein
p. 304provided that the judge may, in his discretion, charge the costs of the proceedings against the petitioner. This provision ,authoiv izing the . charging of the costs as against the petitioner was stricken-from the law by chapter 428 of the Laws of ,1904. So that at the time that this proceeding was instituted there was no special authority of law for the charging of these costs as against the petitioner. The contention of the appellant,, however, upon this appeal is, first, that this is a special proceeding under the Code' of Civil Procedure, and the costs are authorized in the discretion of -the court by reason of the Code provisions.; secondly, that even if costs bé- unauthorized the remedy of the petitioner was by appeal, and not by motion. Section 3333 of the Code of Civil Procedure defines an action in the following words: “ The word ‘action,’ as used in the Mew Revision of the Statutes, when applied to judicial proceedings, signifies an ordinary prosecution, in a court of justice, by a party'against another party, for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offence.” By section 3334 a- special proceeding is thus defined: “ Every other prosecution by a party, for either of the purposes specified in the. last section," is a special proceeding.” The surrogate was" probably right in holding, that this .was not a special proceeding within this definition. ’ The proceeding is one for the protection of the alleged lunatic and for the protection of society. ' The petitioner neither gains nor loses by the Order entered therein. M o right is enforced, no wrong redressed, ho public Offense is punished. Moreover the intention of the lawmakers is manifest to make special provisions for this proceeding, and not to bring the proceeding, within the general rules of the Code of Civil Procedure, governing special proceedings. The provisions of section 64 as; to costs, which were eliminated by the amendment of 1904, would have1 been surplusage if it- had been the intention that this should be a special proceeding wherein costs were to be governed by section 3240 of the Code of Civil Procedure. The remaining provisions of section 64, which are still in force,, make provisions for costs of the proceedings not applicable to special proceedings generally. The provision, of section .63 as to appeal’ from the order of commitment is a provision applying only to this class of cases, and in itself impliedly negatives the right
p. 305to appeal as from a final order in a special proceeding under the Code of Civil Procedure. These provisions of section- 63 also contain an answer to the appellant’s contention that the remedy of the petitioner was by appeal rather than by motion. _ The appeal provided for by that section seems to be an appeal to a judge and jury upon the question of fact — the insanity of the alleged lunatic, and no appeal seems to be therein provided upon which the right of the surrogate to grant these costs could be reviewed. The petitioner’s motion, therefore, was the proper, and apparently the only remedy, and as we are of the opinion that the amendment' of section 64 "of the Insanity Law by chapter 428 of the Laws of 1904 deprived the surrogate of the right to impose costs upon the petitioner, we conclude that the order should be affirmed, with ten dollars costs and disbursements.
All concurred; Parker, P. J., not sitting.
Order affirmed, with ten dollars costó and disbursements.