In re McAdams — 26 N.Y. Sup. Ct. 292

Majority

p. 292

In The Matter of LOUISA R. McADAMS, a Suppose Lunatic.

Headnote

Proceedings de lunático inquirendo— court cannot grant an extra allowance.

Where, in proceedings de lunático inquirendo, an inquisition is found in favor of the alleged .lunatic, the court cannot grant an allowance for counsel fees, expert witnesses, etc., to him, and charge the same upon the petitioner.

Appeal by Louisa R. McAdams, a supposed lunatic, from two-orders made at Special Term, denying a motion made on behalf of the alleged lunatic, for an order directing the petitioner herein to pay her costs and disbursements.

This Was a proceeding de lunático inquirendo, instituted by one William A. McAdams, a son of the alleged lunatic, to have her, his mother, declared insane. The petitioner failed to establish the alleged lunacy.

On the report of the commissioners, Mrs. McAdams’ counsel moved the court to confirm the report, and for an allowance to the commissioners, and for her costs and disbursements ; and presented to the court a statement of her disbursements, and among them were the following three items : “ To bill of Charles Corey, M. D., $125 ; to bill of Charles F. Young, M. D., $60 ; to bill of William. A. Little, M. D., $60,” with the following statement: “The above bills were incurred by the said Louisa R. McAdams, in having herself examined by each of the above-named physicians, to test her as to her sanity, and in their attending on the inquisition in the above matter, for the purpose of testifying, as experts, to the sanity of the said Louisa R. McAdams.’^

The court allowed five dollars witnesses’ fees, and fifty dollars each to the commissioners, and refused to allow the items of expenses for expert testimony, or any costs or allowances to counsel, claiming that it had no power to do so,, and entered an order accordingly ; this order failed to provide for confirming the commissioners’ report, so an order to show cause was obtained why the same should not be confirmed, and for a rehearing of the motion for costs, etc., but the court again asserted that it had no power to

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grant them, and again denied the motion ; from these two orders the appeal is taken.

J. Stewart Moss, for the appellant.

Barnett & Patterson, for the respondent, Wm. A. McAdam.

Assuming the proceedings de lunático inquirendo to be special proceedings, within the meaning of chapter 270, Laws of 1854, the court had no power to grant extra allowances to the alleged lunatic, upon inquisition being found in her favor. (Matter of Rensselaer and Saratoga R. R. Co. v. Davis, 55 N. Y., 145 .)

It is not a matter of course to charge a petitioner with costs when he fails to establish the lunacy charged. If he has acted in good faith, and upon probable cause, he will not be charged. (Matter of Giles, 11 Paige, 638.) The court made a more favorable order than was required by the practice in such cases, where the expense of the commission, sheriff and witnesses’ fees were charged upon the petitioner. Extra allowance, counsel fees and expert witnesses were properly disallowed.

Order affirmed, with ten dollars costs and disbursements.

Dykman, J., concurred ; Pratt, J., not sitting.

Orders appealed from affirmed, with ten dollars costs and disbursements.