The opinion
Kruse, P. J. (concurring):
1. I concur upon the first and second grounds stated in the opinion of Merrell, J. I am also of the opinion that the plaintiff by his own testimony opened the door by giving testimony regarding the making of the note so as to permit the plaintiff himself to give testimony concerning the same.
2. T dissent, however, from so much of the opinion as holds that section 829 applies only to a lunatic who has been so adjudged after a trial and finding of incompetency under title 6 of chapter 17 of the Code of Civil Procedure. The lunatic here had been committed to one of the State hospitals for the insane by a judge having jurisdiction of the matter, and was in the custody of officers in charge of that institution and a ward of the State at the time of the trial. I think that established, at least presumptively, that he was a lunatic within tho meaning of section 829, even if the order committing him was made without previous notice to him.. (Sporza v. German Savings Bank, 192 N. Y. 8 .)
3. If the evidence fails to establish that the plaintiff was *266 the owner of the note, the complaint should be dismissed, but I think that possibly there may be enough to make that a question of fact. I, therefore, vote for reversal and a new trial.
Judgment and order reversed upon the grounds stated in the opinion, and a new trial granted, with costs to the appellant to abide event.