In re Bergmann , 97 N.Y.S. 346 ( 1906 )

Kellogg, J.:

The petition upon which Brinnier was appointed committee was made by the brother of the alleged incompetent, and alleged, in substance, that she had been a resident of Acra, Greene county, N. Y., for tea years last past, and as she was about to take a trip to Europe, as had been her custom for years, she went from her home to Hoboken, Hudson county, N. J., engaged her passage and made the necessary__ arrangements for sailing on the 9th day of June, 1904; that upon her arrival in Hoboken a few days prior thereto she received a note from a physician in Newark saying that her daughter was about to undergo an operation and that her presence was immediately requested at the place where the bearer would direct her. She accompanied the bearer to the place, inquired about the operation upon the daughter and was then taken to a room and locked up, informed that no operation was to be ha.d and that she was the person'wanted. She was in the-'Essex County Hospital for the Insane at Newark, N. J; that her said daughter and son-in-law and one Gaffney inveigled her to Newark and the county where the proceedings were had, caused her to be incarcerated and adjudged insane and the said Gaffney to be appointed committee over her in pursuance of a delibérate scheme between them to obtain unlawfully the control of her person and thereby of her estate, which is alleged to be large, and that by reason of the fraud, -deceit, corruption and illegal practices of these conspirators she was adjudged insane upon the evidence of said Gaffney and another, who, while physicians, were not experts in insanity and were strangers to her, and that during all the time she was not insane and that since his appointment said guardian has excluded her friends from her; annexed to the petition are affidavits of others tending to show that she is 'not insane. The petition does not allege her insanity, but says that she was adjudged insane under the circumstances related, and the petitioner is informed and believes that the court is bound by the adjudication in the Hew Jersey court. The order recites her as residing in this State at the time and prior to .her commitment. If the proceedings in Hew Jersey were instituted for the purpose and in the manner alleged in the petition, and if Mrs. O’Connor, a sainé resident of this State, was put in an insane asylum there by fraud and kept there by force, such- proceedings cannot be an adjudication as to her insanity or establish her non-residence in this State, and the courts of this State will not at any time follow or act upon them. The validity of such proceedings may be attacked collaterally as well as directly, and a' fraudulent decision in another State is as much open to such an attack as if it’ were a decision in this State. (Gray v. Richmond Bicycle Co., 167 N. Y. 348 ; Mandeville v. Reynolds, 68 id. 528, 543 ; Rice v. Bruff, 87 Hun, 511, 515.) A committee of an alleged incompetent who is a resident off this State can be appointed only after the issuing of a commission and the determination of a jury as provided by section 2327 of the Code of Civil Procedure. The' only exception to this rule is when the application is made in behalf of the State authorities and the incompetent person is in a State institution. (Code Civ. Proc. § 2323a.) The appointment of Brinnier as committee in this State was apparently made under the provisions of section 2326 of the Code of Civil Procedure, and no commission was issued or inquisition had. But that section only applies where the alleged incompetent is a non-resident and where a committee lias been duly appointed in the State where she resides. The appointment was made solely upon the petition, which showed as a matter of fact that Mrs. O’Connor was sane and was a resident of the State and .that the so-called guardian was not legally such. Therefore, the court had no jurisdiction to appoint him as' committee, and. the order in that respect is- void.

Dr. Gaffney, in the petition upon which he was appointed committee in this State, does not, allege'that Mrs. O’Connor is insane or that she.is a non-resident of the State, except as he has incarcerated her in a Hew Jersey insane hospital and keeps her there. IId simply produces the void determination of the Hew Jersey court which he had obtained, concealing from the court here the manner in which she was put into tlie hospital and the determination of the Court obtained, swearing that no other committee haj been appointed in this State, evidently not basing the allegation upon the legal conclusion that the appointment made was absolutely void, but swearing as a fact that none had been made. It is true he now swears that at the time he had no knowledge of the fact, but the evidence is quite satisfactory that previously he had been informed of Brinnier’s appointment, and the petition upon which his appointment, was obtained here contains a false statement in that respect and suppresses the most material facts in every respect. We have seen that Mrs. O’Connor was in fact sane and was in fact all the while a resident of this State. Her illegal confinement in a Hew Jersey insane asylum by the party making the application here cannot make her a resident of that State. These facts deprived the court of jurisdiction to appoint Dr. Gaffney, and the appointment is, therefore, void. (Gray v. Richmond Bicycle Co., 167 N. Y. 348 ; Roderigas v. East River Savings Institution, 76 id. 316 ; Scott v. McNeal, 154 U. S. 34.)

In the application of the appellant to vacate the Brinnier appointment it appears affirmatively that his attorney knew the contents of the petition upon which Brinnier was appointed several days before he made this application. Still he does not deny any of the allega-' tions in that petition. It is, therefore, fair to treat them as facts. If those allegations are true it is only fair to assume that this application is made by the appellant with the same purpose and intent which actuated him when he participated in the original illegal proceedings. He is not a relative or friend of Mrs. O’Connor; his appointment in Hew Jersey and his appointment in this State are invalid and he has made no attempt satisfactorily to explain his position here.

The order appealed from should be reversed, and the motions determined by the order denied, upon the ground that there has been no legal appointment of a committee or guardian; no costs should be allowéd'.

All concurred,

Order appealed from reversed; motions determined by such order denied upon the ground that there has been no legal appointment of a committee of guardian of the alleged lunatic; no costs to either party.