The statute respecting the care and custody of the insane •(chapter 446, Laws 1874) does not deprive the alleged lunatic of the right of trial by jury. It does, however, provide for his summary and temporary confinement “ upon the certificate of two physicians under oath, setting forth the insanity of such person.” But this confinement is “for the care and treatment” of the insane party. This confinement must not exceed “five days, unless within that time such certificate be approved by a judge,” etc. Obviously, these are humane provisions intended to secure proper care and treatment for the insane, and to protect third persons from their irresponsible violence. The judge “may institute inquiry and take proofs as to any alleged lunacy before approving or disapproving such certificate; and * * * may, in his discretion, call a jury in each case to determine the question of lunacy.” The defendant contends that “may,” as here used, means “must,” because the rights of the public and of third persons are concerned, and that there can •be no relaxation of statutory safeguards in favor of liberty. Conceding the general rule to be as claimed, it is obvious from the nature of the case, and from the words of the statute, that the judge is vested with a discretion adequate to the exigency. Some cases are too plain to admit of doubt; others are ■doubtful. The judge must act as he thinks most wise, under circumstances which sometimes must be painful, but leaving no doubt as to the propriety of .prompt and decisive action, and at other times of such doubt and delicacy as to suggest every precaution the statute affords. But when summary action has been taken, and the alleged lunatic is confined upon the certificate of the physicians approved by the judge, the lunatic himself, or any friend in his behalf, “may, within three days after such order or decision, appeal therefrom to a justice of the supreme court, who shall thereupon stay his being sent out of the county, and forthwith call a jury to decide upon the fact of lunacy.” Section 11. Such an appeal was taken in this case, and the jury pronounced the plaintiff sane, and he was thereupon discharged.
The plaintiff urges that by his confinement until his discharge he was deprived of his liberty without due process of law or the judgment of his peers. Oonst. art. 1, § 1. A person charged with felony is first arrested, and, upon *340examination before the magistrate, committed to jail to await the action of" the grand jury. He may not be indicted, or, if indicted, may be acquitted upon trial. Meanwhile, he lies in jail awaiting his discharge upon the final judgment of the law that he is not guilty. In the absence of a malicious-prosecution it has never been alleged that he was deprived of his liberty without due process of law or the judgment of his peers. The state cannot take all steps at once; and when provision is made that they shall be taken one-after another, with reasonable care and expedition, in the manner and form approved by experience and sanctioned by law; the individual, who, as it must sometimes happen, suffers a temporary deprivation of liberty, must necessarily remain without remedy. The state provides the best system its wisdom suggests, but so long as it must be administered by men it cannot guaranty against occasional mistakes.
The defendant the recorder had the power’s of a judge of a court of record-His approval of the certificate of the physicians was a judicial act. It was an-act analogous to the issuing of a warrant for the arrest of an alleged criminal upon information verified by oath. If the information fills the requirements-of the statute, the magistrate’s jurisdiction is complete. But the information may be incomplete in fact. Some essential specified in the statute may be omitted. The magistrate may not be learned in the law, or, if learned,. not always sound3 in judgment. He looks at this information, and decides that a case exists, when in fact and in law there is no case. He issues his. warrant when he ought not, and the result is that a man who has committed no crime, and against whom no crime is alleged, is arrested, and temporarily deprived of his liberty. In one aspect of the case the magistrate had no jurisdiction, because the law gives him no jurisdiction to issue a warrant unless it appears that an offense has been committed, and there is reasonable-cause to believe that the accused committed it. A j udge upon habeas corpus ought to decide that the magistrate had no jurisdiction to issue the warrant* Why, then, cannot the magistrate be pursued by the injured individual ? Because, when the information was presented to him, it was his duty to decide-what his duty was respecting it. He had jurisdiction of that question, and his wrong decision upon it was a judicial error. Hq had a duty to perform, and the law does not punish him for á mistake in trying to do it right. In Lange v. Benedict, 73 N. Y. 35, the judge pronounced a sentence which he-had no jurisdiction to pronounce, but he supposed he had, and it was his duty to decide whether he had or not. He had the statute for his guide; but he had to interpret the statute, and he did not interpret it aright. But he had to decide; he was no mere volunteer. He made a mistake; but he made it, in the discharge of his master’s (the government’s) business, and his wrongful act was the government’s, not his own, and he incurred no personal liability.
Ho cause of action is stated in the complaint against the recorder. 'The charge of a lack of due and ordinary care and prudence adds no support to a charge of liability for judicial acts. Public policy forbids that a disappointed suitor should be clothed with such a weapon with which to smite or annoy a judge who decides against him.
The defendants the physicians were such experts as the statute authorizes to make the certificate of the plaintiff’s insanity. Ho allegation is made in the complaint of a defect of a proper request or information upon which they proceeded to examine the- plaintiff and make their certificate, and none can be presumed. The physicians followed the forms of the law. Whether the reasons set forth by them in the certificate for their conclusion that the plaintiff was insane were sufficient or not is immaterial. The presumption, is that they set forth such reasons as, in their opinion, were sufficient, and such as appeared to them to be true in fact. But the complaint charges that the physicians made the certificate “without proper and ordinary care and *341prudence, and without due examination, inquiry, and proof into the fact whether plaintiff was sane or insane.” We think the physicians owed the plaintiff the duty of making the examination with ordinary care. Their duty must be measured by the trust which the statute reposes in them, and by the consequences flowing from its improper performance. They assumed the duty by accepting the trust. They are not judicial officers, but medical experts. They are not clothed with judicial immunity, and are chargeable with that negligence which attaches to a professional expert who does not use the ■care and skill which his profession, per se, implies that he will bring to his professional work.
It is urged that the physicians are privileged by the statute, and their certificates are privileged communications. Doubtless this is true if they discharge their duty with ordinary care; but in the absence of such care their privilege cannot protect them. Their privilege is that, so long as they do their duty with the care and skill the statute presumes and requires, they are not responsible to the plaintiff for the consequences, however harsh they may be; for in such a case the law afflicts the plaintiff, but when they do not use such care and skill it is their personal negligence which afflicts him.
The remaining question is whether the complaint sufficiently alleges negligence upon the part of the physicians. They urge that facts are not stated, but only conclusions of law. We think, however, that the portion of the •complaint above quoted, imputing negligence, is a statement of conclusions of fact. Plainly, if all the details wereset forth, the sum of which would amount to the charge of negligence, the complaint would be open to the objection of pleading evidence. All the evidence may be set forth in a complaint without setting forth any case at all. The charge of negligence embraces the sum of all the evidence necessary to establish it, and is therefore a conclusion of fact.
The judgment of the special term is reversed as to the defendants Bussell and O’Leary, and their demurrer overruled, with costs of this court and of the ■court below, with the usual leave to withdraw the demurrer, and answer on payment of costs, and is affirmed as to the defendant Gould, with costs.