This is a motion to dismiss an appeal from an order dismissing a writ of habeas corpus and remanding the person- brought up to an institution for the custody and treatment of the insane. The ground of the motion is that the relator has no interest in that he is practically a stranger. Section 73 of the Insanity Law (Laws of 1896, chap. .545) in- part provides, that any one in custody- as an insane person is entitled to the writ. upon “ a proper application made, by him or some friend in his behalf.” The word “ friend ” as . thus used ,may be given its definition as “ one favorably disposed.” (Anderson Diet, of Law, 480.) There is some evidence to justify the inference that the application was made partly at the instance of the alleged lunatic. The court, with - full knowledge of the facts now relied upon, entertained and retained the application and proceeded to a determination on the merits. Section 2058 of the Code - of Civil Procedure, ’ which is applicable (Id. § 2066), permits an" appeal',, and we think that in view of this disposition by the court we should not dismiss the appeal. If the' application was held proper, the right to appeal may well be recognized. -
The order shows a cogent reason why we should hear the appeal. The return was that the person brought up was committed upon a certificate of her lunacy; The court in the order determined that the commitment was void in that there was no notice to the alleged lunatic, and no. opportunity for a hearing was afforded to her; It also determined therein that the person is not insane and in its opinion never was insane. And yet it remanded her to the proprietor of an institution for the custody and treatment of the insane. The ground of the remand is- that the person, who is a! v minor, was also held by virtue of delegated parental authority, and the restraint was reasonable and necessary under the circumstances. We think that there is no parental authority which alone justifies the confinenient of a sane minor in a madhouse. It-cannot *49be a substitute for a void ^commitment of lunacy of a minor who always was and is sane. That in this case the minor was not taken back to the institution, but sent abroad by her parents under tutelary control, where she now is, does not affect the fact that the order is a continuous menace to her — a formal legal threat against her liberty. If the court was right in its determination as to her sanity, she is entitled to have the order set aside, or at least modified. It may be that only modification is required, inasmuch as the court in this proceeding, in the exercise of its inherent power, may, perhaps, determine that the custody of the infant should be committed to her parents. 'We think that we should not dispose of The merits upon this motion to dismiss the appeal, and for the reasons stated we should not grant the motion.
IIirschberg, P. J., Bartlett, Woodward, Jenks and Hiller, JJ., concurred.
Motion denied.