One who has been wrongfully declared insane without notice or hearing at the instance of another, acting maliciously, knowing the allegations of insanity to be false, must have some remedy for such injustice. It cannot be that the form of action or the name we give it fails to arouse the court.
The complaint in this action has been held to be insufficient as not stating a cause of action for an abuse of process. In my opinion it is entirely immaterial whether it be called such or an action of malicious prosecution; it states a grievance recognized by law. (Keller *Page 378 v. Butler, 246 N.Y. 249, 254.) In that case the court said: "Names and classifications of remedies are not indispensable to a court, although they may be convenient and necessary for the student. Justice may not tarry to tabulate. The fact is, such a wrong must have a remedy. It is provided either in the action for malicious prosecution or in an action for abuse of process." Continuing, we cited cases in the nature of malicious prosecutions for abuse of process. That insanity proceedings may be the basis for malicious prosecution, see Harper on The Law of Torts (§ 268); Reade v. Halpin (193 App. Div. 566, 569); Cooley on The Law of Torts ([4th ed.] § 127). Even a civil proceeding brought to harass and oppress may give rise to such a remedy. (Burt v. Smith, 181 N.Y. 1.)
Says Harper in his Law of Torts (§ 268): "Even under the narrow English rule, the action may be brought for insolvency or bankruptcy proceedings, since the reputation and credit of the plaintiff have sustained direct, pecuniary loss, and in most jurisdictions the action will lie for civil proceedings accompanied by arrest, attachment, or injunction. The institution of lunacy or insanity proceedings also comes within the principle since the liberty of the person charged is involved."
Where the alleged insane person has had no notice or hearing the decision of the court finding him incompetent is not such a determination as bars the action for malicious prosecution. (Bump v. Betts, 19 Wend. 421; Swensgaard v. Davis,33 Minn. 368; Apgar v. Woolston, 43 N.J.L. 57.) In theSwensgaard case it was said: "The general rule, making the right to maintain an action of this nature [malicious prosecution] to depend upon the fact that the prosecution complained of has resulted in a determination in favor of the accused, is applicable only when the course of the prosecution has been such that the accused had the opportunity to controvert the facts alleged against him, and to secure a determination in his favor." *Page 379
Taking the essential allegations in the complaint we find them to set forth: The defendant maliciously and willfully and without legal cause or warrant, sought to have the plaintiff declared incompetent, so as to procure his property. That in July, 1934, the defendant, without the knowledge of the plaintiff, began a proceeding in the Supreme Court to have herself appointed committee of the plaintiff's person and property, and caused such proceedings to be taken without notice to the plaintiff and without his knowledge, and she falsely and maliciously represented in said proceedings that the plaintiff was violent, and that it would endanger his life to appear in court; and she thereby induced the court to issue process and to appoint the defendant committee of the plaintiff's person and property. The plaintiff was entirely unaware of these proceedings until late in 1934 when defendant threatened to deprive him of his liberty; that immediately after discovering what had been done the plaintiff applied to the Supreme Court to set aside the appointment. The application was granted after a jury on a hearing had declared the plaintiff competent.
The complaint then sets forth the following: "That at all times the defendant knew that the plaintiff was not incompetent, insane or a lunatic."
Here, in my opinion, we have pleaded a sufficient and complete cause of action for malicious prosecution. The judgment below should be reversed, with costs, and the motion to dismiss the complaint denied, with costs.
What a trial of this action may show we cannot tell; the plaintiff may not sustain his case. Now, however, we are dealing solely with his broad allegations as if they were true.
The judgment should be reversed.
LEHMAN, LOUGHRAN, FINCH and RIPPEY, JJ., concur with HUBBS, J.; CRANE, Ch. J., dissents in opinion in which O'BRIEN, J., concurs.
Judgment affirmed. *Page 380