The opinion
Brewster, J.
(dissenting). It seems agreed that the St. Lawrence County Special Surrogate had no jurisdiction whatever in the matter of the charge that claimant was an insane person save that which devolved upon him and was an attribute of a “ county judge out of court.” In regard to such a matter he possessed only those powers and could perform only those duties which were possessed and could be performed by a “ county judge out of court.” (L. 1851, ch. 108.)
The proceeding to determine whether a person is insane, and for his commitment as an insane person prescribed by article 5 of the Mental Hygiene Law as in effect at the time of the order imports a judicial proceeding in every sense of the word. Notice must be given or judicially dispensed with. A hearing must be had. A trial of the issue may he had. A judgment concludes the matter in the sense of a judicial determination respecting the mental status. While the statute aforesaid refers in name to a judge or justice of a court of record (§ 74) and to “ the judge ” (§ 72), these references, in my opinion, do not connote a “ judge out of court.” Full *525 judicial inquiry is provided for and must be had. The subject of the proceeding is such that the procedure is designed for the facility of speedy conclusion, yet all the constitutional safeguards are preserved and however informally the requirements may be observed still it is a judicial proceeding in a matter of the utmost importance to the person proceeded against and therefore not a mere ministerial or other function which may be performed by a judge out of court as that phrase of limitation is used in defining the power of a special officer.
In my opinion claimant’s commitment to the State Hospital was void and afforded no protection for his illegal restraint (Washer v. Slater, 67 App. Div. 385 ; 35 C. J. S., False Imprisonment, § 28, p. 540), and the order dismissing the claim should be reversed.
Hill, P. J., Foster and Lawrence, JJ., concur with Heffernan, J.; Brewster, J., dissents in memorandum.
Order affirmed, without costs.