For years the relator was wrongfully confined in the Utica State Hospital for the Insane upon a commitment which was void. ■ It was so decided by the Special Term, and with the part of the order so deciding the appellant is content.
The infirmity in the order appeared upon the face of the papers committing the relator. The patient had no notice of the proceeding committing him, and the petition was not made by any person whom *126the law provides may make such a petition. This fact appeared upon, the face of the papers which were delivered to the person in.charge of the institution to which the relator was first committed. It also appeared upon the copy óf the papers which was delivered to the superintendent of the .Utica State Hospital at the time the relator was transferred to that institution.
Presumably the' superintendent was familiar with the provisions of the statute for committing persons to the hospital for the. insane, and beyond that, he may call to .his aid legal counsel furnished at the expense of the State. Hot only may he have recourse to the Attorney-General, but special counsel is appointed by the State for that purpose.
I do not agree with the suggestion that the superintendent was required to receive the relator upon a commitment which was- void, and so appeared upon the face of the papers which were delivered, to the superintendent. At all events, when the question was raised, it was unnecessary to litigate the matter, or, if it was regarded as necessary or important that the question should be contested, there, is no good reason shown why the relator should not be awarded the costs which he incurred in vindicating liis right to be at liberty.
. The relator made his. claim to the superintendent that he was illegally confined,- and drew up a petition, in good form, directed to a justice of the Supreme Court, calling his attention to the fact that he was illegally confined, as he had a right to do. The only reason it was not verified was because there, was no officer before whom the relator could go for.that purpose.
■ A writ of habeas corpus was issued directed to the superintendent, who brought the relator before the court. Instead of -submitting the matters to the court for its determination, upon the papers and order of commitment, the appellant amended his return, which he had previously made, and put in issue the allegation, of the petition that the relator was not properly in the custody of the superintendent, and challenging the claim that the commitment and the papers upon which it was made were not sufficient.
The matter was referred to a referee, who certified that in his opinion the commitment was void, and this report was confirmed at Special' Term, and- an order made that the order of commitment adjudging the relator insane is illegal and void; that the' relator is *127.unlawfully imprisoned and restrained of his liberty, ordering his discharge, and requiring the superintendent to pay the costs.
It is now proposed to reverse that part of the order awarding costs, upon the ground that it was an abuse of discretion upon the part of the Special Term. I cannot bring myself to the conclusion that there is any'justification for interfering with the discretion of the Special Term in that regard. I am well aware that we ought not to sanction any proceeding tending needlessly to harass or embarrass the superintendent in the performance of his duties, which are necessarily of a delicate and difficult nature. But I do not think this proceeding is of that character. It is at least equally important that no person be restrained of his liberty, and confined, except by proper proceedings and commitment. ■ Yery true, mistakes do happen ip the making of these orders, but when attention is called to an infirmity which is so apparent and vital as in this case, it does not seem to me that there should be needless litigation over the matter. At all events, the court at Special Term had the whole matter before it, and, as I think, correctly disposed of the question of costs.
It is not a question of punishing the superintendent, as is suggested by counselor his behalf. I have no doubt that he acted in good faith. It is, rather, whether the relator, who has been illegally confined, shall be reimbursed to some extent for the costs incurred by him in freeing himself from illegal imprisonment.
Awarding costs against a State officer is not new. It is done every day in unsuccessful suits brought by the Commissioner of Agriculture, State Excise Commissioner, Comptroller and other State officers. Such costs are usually paid by the State, and I think the State would ultimately pay these costs. Such a claim seems to come within the spirit, at least, of the provisions of section 46 of the Insanity Law (Laws of 1896, chap. 545, as amd. by Laws of 1905, chap. 490), which provides for the State paying any just claims for damages against such officer, for which the State would be legally or equitably liable.
I vote for affirmance.
Order, so far as appealed from, reversed, with ten dollars costs and disbursements.