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a mere idle formality to require amendments, or to decide the motion on matters contrary to the true state of the record as conceded by all of the parties.

Therefore the situation, on the pleadings, is that the defendants Halpin and the society are charged with a conspiracy to have the plaintiff declared insane, that the physicians who made the certificate in lunacy are not joined as defendants and are not charged with any misconduct, and that the defendant who made the petition, namely, Munson, has been held blameless by the verdict of the jury. Vose v. Yulee, 64 N. Y. 449.

[3] A malicious prosecution is one that is begun in malice, without probable cause to believe it can succeed, and which finally ends in failure. Burt v. Smith, 181 N. Y. 1-5, 73 N. E. 495, 2 Ann. Cas. 576. It seems to be settled that in an ordinary civil action, if the person or property of the defendant therein has not been interfered with, the action for malicious prosecution will not lie, even though such civil action was instituted maliciously and without probable cause, and was for the conversion of moneys under circumstances amounting to grand larceny. Paul v. Fargo, 84 App. Div. 9, 82 N. Y. Supp. 369.

In the case of Halberstadt v. N. Y. Life Ins. Co., 194 N. Y. 1, 86 N. E. 801, 21 L. R. A. (N. S.) 293, 16 Ann. Cas. 1102, which was a case of alleged malicious prosecution by means of criminal process, the Court of Appeals did not overrule the doctrine laid down in Paul v. Fargo, but said that it must be interpreted with reference to the fact that it was concerned with civil process and that in a criminal case the basis of recovery"may be that inflicted upon the feelings, reputation, and character by a false accusation, as well as that caused by arrest and imprisonment."

Passing the question, however, whether the proceeding in lunacy was in the nature of a civil or criminal prosecution, and whether a cause of action for malicious prosecution can rise out of such a proceeding, where there has been no interference with the person or liberty or property of the plaintiff, but assuming that a cause of action for malicious prosecution can arise out of such an insanity proceeding, the first question which presents itself is whether the complaint states a cause of action against the remaining defendants; Munson, one of the real actors, having been held blameless, and the physicians, the other real actors, not having been charged with any wrongdoing. In a malicious prosecution action arising out of a criminal case, it has been held immaterial whether the defendant alone formally prosecuted an arrest, or whether he stirred up and procured another to do it. Dann v. Wormser, 38 App. Div. 460, 56 N. Y. Supp. 474.

[4] Assuming, for the present, the applicability of this decision in a criminal cause, it must be conceded that, where the actors as they appear upon the record act lawfully and properly and their acts are the proximate cause, the acts and motives of those who procure them to act become immaterial, because remote.

[5] The jury has found that there was cause of action

no

(182 N.Y.S.) against Munson. It may be contended that the jury may have found this, either because there was no malice on his part, or because there was probable cause, and not because of the absence of both malice and probable cause. Surely, however, in the absence of a conspiracy between the defendants, including Munson, it could not be said that that was an absence of probable cause to believe he would succeed in the mind of Munson, when he was supported in his petition by the certificate of two qualified medical examiners in lunacy, who rendered to him an opinion that the plaintiff was insane, and who were not charged by the complaint with being co-conspirators. Also, how can it be inferred that the jury concluded there was any presence of malice on the part of Munson, notwithstanding the fact that he was charged by the complaint with a reckless and careless failure on his part to investigate statements alleged to have been made to him, where it appears upon the face of his petition, which is a part of the complaint, that he stated facts “observed by or information known to him," which would tend to show the existence of insanity? This petition was verified by him, and, if the charge alleged against him in the complaint is true, it must be assumed that he was guilty of perjury in his petition in having alleged that the facts stated by him were "observed by or information known to him.” There cannot be any inference, however, that the defendant Munson was guilty of the crime of perjury. If this be so, then Munson did not rely upon anything but his own observation and knowledge as stated in his petition. I therefore believe it must be presumed that the jury acquitted Munson of being a conspirator, or of having lack of probable cause, or of having been malicious. It follows, also, that the act of Munson was the proximate cause, and any acts of the other defendants, however malicious and lacking in probable cause, become immaterial, because remote.

The defendant Munson, who signed the petition and who instituted it before the county judge, was the superintendent of the poor of Rensselaer county, and it is alleged that he in effect was the tool and agent

the two remaining defendants, and that the information as to the acts and statements of the plaintiff, recited in the petition, were false and untrue, and were furnished by the two remaining defendants with the understanding, agreement, and intent that it should be used by the defendant Freeman H. Munson for the purpose of commencing said lunacy proceedings against this plaintiff. The dismissal of the complaint on the merits as against the defendant Munson authorizes the dismissal of the complaint as to the other two defendants, not only because the conspiracy charge has failed, and because Munson's own act was the proximate cause, but for an additional reason which sounds in good public policy.

It was the purpose of this law, not only to be of service to those who are not responsible for their acts, and need the institutional care afforded by the state, but for the benefit of the public at large, who need protection from their irresponsible acts. It is a very old institution of the state, and the law has surrounded the proceeding with every reasonable safeguard for the protection of the individual

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against improper charges of insanity. To this end the law has granted a special privilege to certain persons holding intimate relationship to the alleged insane person and to certain public officers, of which the superintendent of the poor is one, to institute such a proceeding, and then only upon the supporting certificate of two medical examiners in lunacy, who have been shown to have special qualifications to make the examination and to render their opinion as to sanity or insanity.

[6] The wise public purpose to be served in the protection of the public from those who by their apparent irrational acts have given rise to the necessity of an examination into their sanity should not be curtailed by subjecting the person privileged under the statute to initiate the proceeding to an action for malicious prosecution, where the proceeding has been terminated by a judicial finding of sanity, in the absence of proof of a conspiracy on the part of such actor with others to maliciously and without probable cause vex and harass and injure the person charged with insanity, or in the absence of any improper interference with the liberty of the individual during the course of the proceeding. In the case of such a conspiracy, or if the liberty of the person is improperly interfered with during, or as a result of, the proceeding, a different question is presented. In that event an action for false imprisonment or for malicious prosecution would arise, but that is not this case. It therefore seems to me that this proceeding should be considered as sui generis, and upon the basis of sound public policy, in the absence of conspiracy or improper interference with person or property, and where there is no jurisdictional defect in the proceedings, a superintendent of the poor must be deemed to have instituted a proceeding upon his own responsibility and official sanction under his statutory privilege, and where he is held blameless it must be presumed that he did act upon his own responsibility as a public officer charged with that power and duty, and that there can be no inference that a proceeding would have been instituted, if it had not received his official sanction, and if the act had not been committed as his own official act. The question in such a case becomes solely one of power and authority of the superintendent of the poor to act. In the case at bar there is no charge of jurisdictional defect, and the good faith of Munson has the support of presumption, since the jury has failed to find a verdict against him upon that issue.

[7] But let us analyze the situation still further, so far as the complaint charges malice and lack of probable cause against the two remaining defendants. Before insanity proceedings could be properly instituted, there must have been a certificate in lunacy by two qualified medical examiners in lunacy, to the effect that the plaintiff was in

It appears from the complaint that such a certificate was made. The details are given only in part, and there is a general statement that certain of the statements made to the physicians were false or misleading. It appears from the statute that the examining physicians must be qualified examiners in lunacy; that they must make their own examination of the alleged insane person, and state the facts upon which their opinions are based. The form prescribed for the cer

(182 N.Y.S.) tificate as appears from the complaint is divided into two parts: One for the statement of the history of the patient, and the other for the statement of the examination of the physicians. There is no claim that the certificate was irregular, or that the physicians were careless or were engaged in any conspiracy with the defendants. I must therefore, in the absence of allegations to the contrary, assume that the certificate complied with the statute and that the examination was conducted with reasonable care. Chase v. Lord et al., 77 N. Y. 1; Buffalo City Bank v. Codd, 25 N. Y. 163, 168; Heuertematte v. Morris, 101°N. Y. 63, 69, 4 N. E. 1, 54 Am. Rep. 657. To hold otherwise would be to presume a violation of the statute and malpractice on the part of the physicians, where nothing to this effect appears.

[8] The only allegation of the complaint in relation to the proceeding by the physicians requiring attention is that some of the statements contained in the history of the patient were false or misleading and were supplied by the defendant Halpin. The false or misleading statements are not pointed out. None of them appear to be very vital on the question of insanity, except those in relation to a certain disease and the use of drugs, which were answered in the negative. The facts that a member of plaintiff's family, an aunt, had been insane, and that plaintiff had had a previous attack, were important as a matter of history and statistics, inasmuch as they pointed out the institutions where confinement was had at the time. This would enable the physicians and the committing judge to investigate from the records of such institutions previous attacks of insanity and would be of value in determining the care and treatment that should be provided for such patient in the event of the determination that the patient was insane and needed further treatment. Most of the matters contained in the history as set forth in the certificate in question are immaterial on the question of insanity. I am unable to determine which of the statements in the history were true, or false or misleading, and, if misleading, in what respect. In any event it is not alleged that they did mislead the physicians, or that they had any bearing on the matter determined by the physicians. Essential facts cannot be left to inference. A pleading cannot be upheld simply because a state of facts might exist. Spear v. Downing, 34 Barb. 522; Phillips v. Sonora Copper Co., 90 App. Div. 140, 148, 86 N. Y. Supp. 200.

[9] The situation, therefore, is that for aught that appears the certificate in lunacy was a fair statement of the opinions of the physicians made after their examination of the plaintiff that the plaintiff was insane. There is no allegation that the physicians were conspirators or were engaged in any unlawful, malicious, or improper scheme or practice. Did not this, as a matter of law, furnish reasonable and probable cause for the proceedings ? A layman is incompetent ordinarily to give an opinion as to the insanity of another. The physician, who is an examiner in lunacy, must be deemed competent in the eyes of the law, in the absence of any charge to the contrary. If a court of justice will not receive the opinion of the layman on such a matter, will it not protect him when acting on the opinion of those who are

competent in the eyes of the law? It seems to me that such must necessarily be the rule, where the physicians proceed in a proper manner, and not as the result of any scheme or conspiracy to accomplish an unlawful purpose.

Public policy and the dictates of humanity require, for the protection of those of unsound mind and of society in general, that such persons be cared for; on the other hand, the liberty of a citizen and his good name must be jealously safeguarded. A charge of insanity does hold a person up to pity, and has a tendency to cause him or her to be shunned or avoided. Such a charge may be fraught with most mischievous and oppressive consequences. The law therefore permits a certain limited number of persons standing in intimate relationship to the alleged insane person or certain public officers, to petition in insanity proceedings. Accompanying this petition there must be a certificate by two physicians specially qualified to make it. Where the physicians and the petitioner enter into a conspiracy with each other, or with others, to institute such proceedings maliciously and without probable cause, there should be a right of action for the damage suffered. Otherwise there would be little protection from the unscrupulous. Where, however, two qualified medical examiners, independently and not in pursuance of a scheme and conspiracy on their part with others to accomplish an improper purpose, make a certificate in lunacy, it ought to furnish reasonable and probable cause to those who set on foot the proceeding under the Insanity Law (Consol. Laws, c. 27), irrespective of their motives. Burns v. Erben, 40 N. Y. 463.

Counsel for the defendants relies upon the application of the case of Paul v. Fargo, 84 App. Div. 9, 82 N. Y. Supp. 369. It may be that this decision is applicable; but, if it is applicable, it must be upon the theory that it ought to be the policy of the law to permit the persons privileged under the statute to bring this proceeding to do so freely and without subjecting themselves to a suit for damages in case of an adverse decision, where they have in no manner interfered with the person or property of the person charged with insanity, and where there is no charge of an improper scheme entered into on the part of the person instituting the same to accomplish an improper purpose maliciously and without probable cause.

I have therefore not relied upon that authority, but have sought to analyze the statute in connection with the charges set forth in the complaint, and for the reasons stated I have concluded that the complaint does not state a cause of action against the remaining defendants.

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