#### The People ex rel. Maurice J. Sullivan, Relator, *v.*John G. Wendel and Mary E. A. Wendel, Respondents.

(Supreme Court, Kings Special Term,

December, 1900.)

Incompetent person —- Must have notice of application for her commitment.

An *ex parte*order made under the Insanity Law (L. 1896, ch. 545, §§ 61, 62) perpetually committing an alleged insane person to the custody of her sister, without notice of the application being given to the insane person or any direction by the court that such notice be dispensed with, and without any hearing having been had at which she was present or represented by any other person, is absolutely void, as the insane person has been deprived of her liberty without due process of law and she is, therefore, entitled to be discharged on *habeas corpus.*

The Insanity Law, in so far as it permits such practice, is in violation of the Constitution.

Application for discharge of Georgiana G. R. Wendel on writ of habeas corpus.

Georgiana G. R. Wendel was adjudged to be insane and was committed to the care of her sister, Mary E. A. Wendel, for custody and treatment as insane. The order of commitment was made *ex parte,*by a justice of the Supreme Court, on September 5, 1900, upon the petition of John G. Wendel and upon a certificate of two physicians, all dated the day the order was made. The certificate was accompanied by a letter from one of the physicians to the justice, stating that in the opinion of the physician he deemed service of notice of the application “ inadvisable.” The order of commitment contains no provision dispensing with notice of the application to the alleged insane person. The order is as follows: “Upon the petition of John G. Wendel, dated Sep*497tember 5, 1900, and which is annexed hereto, and a certificate of lunacy made by two duly qualified medical examiners in lunacy, which certificate is dated on the 5th day of September, 1900, and which is annexed hereto, and being satisfied that the alleged insane person is insane and a proper subject for custody and treatment in an institution for the insane, within the meaning of the statute, it is, therefore, hereby ordered that the said Georgiana G. It. Wendel be, and hereby is, adjudged insane, and that she be committed to the care of Mary E. A. Wendel for the custody and treatment of insane.”

No notice was given to Miss Wendel and she was thereby restrained of her liberty until the issue of a writ of habeas corpus by Mr. Justice Marean, in November, 1900.

The writ was served on Mary E. A. Wendel and on John G. Wendel, but it was ascertained that the custody of Miss Wendel had been transferred from her sister Mary to Dr. O. T. Wilsey at the Long Island Home, at Amityville, Long Island, a day or two before the writ was served. Dr. Wilsey was served with the writ, though not named therein, before the return day. Return was made by the Wendels that they did not have the custody of their sister. Dr. Wilsey made no return to the writ, as he was not named in it. Counsel moved to punish Dr. Wilsey for disobedience under section 2024 of the Code, which prescribes that *“*Any person upon whom the writ is served, is deemed to be the person to whom it is directed, although it is directed * * * to another person.”

The court directed Dr. Wilsey to make return to the writ, and in his return the doctor set forth that he detained the relator under the order of a justice of the Siupreme Court, of September 5, 1900, aforesaid, and by virtue of an order of the State Commission in Lunacy, transferring her from the custody of Mary E. A. Wendel, to whom said justice’s order committed her, to the custody of the Long Island Home at Amityville, in charge of the respondent.

The relator demurred to the return on the ground that all that is contained therein is insufficient in law to justify her further detention; that the order of commitment fails to show that the relator was ever arraigned before the justice making the order, or that any witnesses were produced before him or examined in her presence, or that the relator had any hearing or notice of any kind, and *498that the relator was restrained of her liberty without “ due process of law.”

William L. Snyder, for relator.

Bartow S. Weeks, for respondents.

Marean, J.

The alleged incompetent was adjudged insane and committed by a justice of the Supreme Court, pursuant to sections 61 and 62 of the Insanity Law (L. 1896, ch. 545). The adjudication was final and the commitment perpetual, subject only to be terminated by affirmative proceedings on her part, to be taken while in confinement, in which she would be required to give security for costs. There was nothing provisional or temporal about the adjudication or the commitment. Temporal and provisional restraint is provided for by section 68. She had no notice of the application, either personal or by substituted service on some person in her behalf, and there was no hearing at which she was either present or represented by any other person. She had been finally adjudged insane and committed to perpetual restraint, without notice or hearing. She is deprived of her liberty, therefore, without due process of law. People ex rel. Ordway v. St. Saviour’s Sanitarium, 34 App. Div. 363. The Insanity Law, so far as it permits this, is in violation of the Constitution.

When one has been duly adjudged insane, when his status as an insane person has been duly established, personal notice, or notice of proceedings affecting his interest, may be dispensed with, if it appears that such service would be prejudicial to his mental condition. But, for the protection of those who are sane, it ought not to be tolerated that any person should be adjudged insane> and finally committed, without either notice or actual hearing.

It is doubtful, also, if the commitment of the alleged incompetent to the custody of her sister, even if it were valid, warranted her transfer to the hospital by the commission. The statute only permits transfers from one hospital to another. She is discharged.

Application granted.