I am not able to concur in the views of the majority of the court in this matter, but am of the opinion, that the application of the appellants to the court below should have been granted in part. They were given a standing in court and allowed to participate in the proceeding instituted by the petitioner to supersede the commission appointing a committee of his person and of his estate. Proceedings of this character are altogether within the control of the court, and, strictly spéaking, there are no parties to them in the ordinary relation of parties to adversary proceedings. When a petitioner applies to the court for a supersedeas of. a commission, the judge before whom the application is made has wide discretion as to the method of conducting the inquiry into the mental condition of the applicant. He may cause witnesses to be brought before him and examined in open court, or he may hear the application upon affidavits, or he may refer the matter' to a referee to take testimony and report. “ The manner in which he will ascertain whether the alleged lunatic has become sane and competent to take care of himself and his property rests in his discretion.” (Matter of Blewitt, 138 N. Y. 148.)
When the petition of this incompetent person was presented, the learned judge before whom it came, for very satisfactory reasons, concluded to appoint a referee to take testimony and to report thereon. In the opinion written by the learned judge in making that order it is said that the petitioner had twice been- declared to be an incompetent person, and that the testimony before the court tended to establish the. fact that he was a victim of insane delusions and at times violent and dangerous. It was evident to the learned judge that the then present mental condition of the petitioner was a mat*342ter in respect of which expert medical testimony would be proper, and he remarked that “ the v.alue which should be attached to the opinions of-the medical experts can only be determined upon proceedings which would disclose what knowledge these physicians have of the family history, habits of life, health and general past conduct of the petitioner.” In' that suggestion of -the court I fully concur. Acting upon it, evidently, the petitioner called before the referee as witnesses expert alienists, some óf whom examined the petitioner as to his mental condition since his coinmitmeút, but others of whom have known him for years. One of them, Dr. Dana, signed the certificate upon which the petitioner was committed to a sanitarium in 1899 ; another, Dr. Sprague, was a witness before the sheriff’s jury on the inquiry as to petitioner’s mental condition in 1899, and he then testified that the petitioner was insane, and there was- other testimony of experts on the same subject. The' direct effect of all the testimony given by the medical experts for the petitioner is that he is entirely sane at the present time and competent to manage his own affairs, but he lias not appeared before the referee nor put himself in such a position that he could be the subject of observation or examination by other expert physicians who have been acquainted with him for years and who presumably would be able, upon observation, to express that valuable and reliable opinion concerning his present condition referred to in the opinion of the learned judge at Special Term,* of which mention has liéreinbefore been made. The appellants have merely asked the court to allow those experts who can give the most intelligent and valuable opinions to examine the petitioner in order that they may testify to his present mental -condition. There seems to be no sufficient reason why that application should have been 3 denied, so far as it relates to expert witnesses, that .is, to skilled alienists who, from their past knowledge of the petitioner, are better qualified to testify after examination as to his present condition than any other class of witnesses. The denial of the motion, so far as it related only to medical practitioners, not skilled alienists, was proper. Those physicians may be called as witnesses to testify to their knowledge of the past history of the petitioner, but upon that branch of the case which involves scientific knowledge there is no reasonable *343ground upon which the best qualified persons should be excluded as witnesses. The reasons assigned by the petitioner for his objecting to them should not be entertained, namely, that they are disagreeable to him, and that because they have heretofore expressed an opinion as to the incurable character of his mental malady, they must necessarily be so prejudiced that they cannot now form an honest opinion as to his present condition, and that he would become unduly excited by being obliged to submit to an examination by them.
I think the expert witnesses whose testimony was sought by the appellants in aid of the inquiry should be permitted to examine the petitioner under such conditions, if proper, as the court might see fit to direct, and I think the order should be reversed and the appellants be allowed to call before the referee such of the proposed witnesses named by them as are experts, but. not those who were merely attending physicians and not shown by the appellants to be expert alienists.
McLaughlin, J., concurred.
Order affirmed, without costs.
The Special Term opinion is reported in 33 Mise. Rep. 417.— [Rep.