#### Matter of H. Victor Newcomb, an Incompetent Person.

(Supreme Court, New York Special Term,

December, 1900.)

Incompetent person — On application for discharge, he should not he examined hy physicians who have expressed opinions adverse to his sanity or who are distasteful to him.

Where an incompetent person is seeking to regain his liberty and property by establishing his present competency, he should not be subjected to any harassing conditions, and therefore should not, at the instance of relatives opposing the application, be examined by physicians who have, by previous stvorn statements, committed themselves to the effect that his malady was incurable, nor by one personally distasteful to the incompetent.

Application for the examination of petitioner by certain physicians.

Harrison, Seasongood & Edwards (Burton ¡N. Harrison, of counsel), for motion.

Gignoux & Gignoux (Delancey ¡Nicoll, of counsel), opposed.

Fitzgerald, J.

When the application to discharge the committee was originally presented in April last it was opposed by petitioner’s wife and son, and I felt at that time, as indicated by me in the memorandum handed down, that a proper disposition of the matter could not be made by a consideration of the conflicting affidavits them presented, and so referred it to a referee to take testimony and report with his opinion- to the court. Such order of reference was subsequently made, and proceedings thereunder are now in progress. A number of witnesses' have been examined. Counsel for opposing relatives before the last adjournment sub*418mitted a list of six physicians to the referee, and requested that opportunity be afforded them to make a physical and mental examination of the petitioner, so as to enable them to testify. The doctors named are Cyrus Edson, Allen Fitch, William Anderton, Allen McL. Hamilton, A. A. Smith and John Ouchterlony The petitioner objects to Drs. Edson, Fitch and Anderton on the ground that under oath they have “ committed themselves to the diagnosis that Mr. Newcomb was suffering from an incurable mental disease; that Dr. A. A. Smith had so expressed himself, although he had not seen Mr. Newcomb for many years; that Dr. Ouchterlony is personally distasteful to Mr. Newcomb, and his examination would be exceedingly objectionable, and further that Drs. Edson, Anderton, Smith and Ouchterlony .are not alienists and competent to give any opinion on the subject.” Petitioner’s counsel stated *“*that they had no objection to having Mr. Newcomb examined by any competent alienists appointed by the court who have not committed themselves already as to his mental condition, but who can approach the subject with an open mind and impartially advise the court on the subject.” This proposition was declined by the counsel for the opposing relatives. The learned referee thereupon said: “I am of opinion that I have no- power to' direct or dictate to either party as to what witnesses they should call or refrain from calling. I also think that I have no power to direct that the petitioner should submit to an examination by the witnesses named preparatory to their testimony, and I certify the matter to the court for such direction or order in the premises as the court may deem proper.” When one who is afflicted has been deprived of his liberty and property, and is seeking to regain their possession by establishing Eis present competency, the court should proceed with great care, to the end that he be not subjected to any harassing or oppressive conditions. Assuredly, he should be spared annoyances calculated to exercise painful influences, or cause him undue excitement, and to subject him to examination, by doctors who have committed themselves by previously expressed sworn statements to the effect that his malady was incurable, would appear to be a hardship. I must, therefore, deny this motion, and in so concluding I also keep in mind the decision in Schermerhom v. Develin, 1 Code Rep. 28, which, as far as I have been able to learn, has not been modified or revised.

Motion denied, with costs.