Thomas A. Ledwith has been committed "to the care and custody of the Trustees of Bellevue and Allied Hospitals at Bellevue Hospital and therein kept in a safe and comfortable place until the question of Thomas A. Ledwith's sanity be determined in accordance with the provisions of law in such case made and provided. The detention of said Thomas A. Ledwith under this order is not to exceed thirty days." The statute prescribes exactly how that determination shall be made and at the time the writ of habeas corpus was issued no determination had yet been made as prescribed by the statute, and thirty days had not yet elapsed. It is true that the hospital authorities state in their answer that in their opinion Ledwith is insane, but their opinion can constitute no "determination" that he is insane, for only the court can make such determination. Their "opinion" would merely result in a certificate to that effect upon which the court might thereafter base a determination. He has been committed not as "an insane person" but as an "apparently insane person," and he may be held as such only until the question of his insanity is determined as prescribed by statute, and his commitment is merely for the purpose of providing for his care and custody until the determination is made, and for the *Page 411 purpose of aiding in such determination. Section 93 of the Insanity Law (Cons. Laws, ch. 27) gives "any one in custody as an insane person" the right to a writ of habeas corpus, and upon the return of the writ "the fact of his insanity shall be inquired into and determined," but unless Ledwith has been in custody "as an insane person" within the meaning of that section from the time he was committed I cannot see how the fact that the hospital physicians have thereafter concluded that he is insane can change his status. Until a determination that he is insane he is still in custody only as a person who is apparently insane. Section 93 of the Insanity Law was not intended to give the courts any general right to inquire into the cause of his detention. That right is one which is guaranteed by the Constitution and provided for by the Civil Practice Act. Section 93 of the Insanity Law presupposes that the cause of his detention is known, viz., that he is "in custody as an insane person." It merely gives the court an additional right to determine upon the return of the writ whether a person previously committed as insane is, at thattime, insane, though his detention until that time was legal under the earlier determination of the court. I cannot believe that this section was also intended to give one committed as "apparently insane" a right to have the fact of insanity determined upon the return of a writ of habeas corpus, either before or after the hospital physicians have concluded he is insane. An orderly method for the determination of whether a person is insane together with a method of review or rehearing before a jury, is provided by the Insanity Law. I do not think that the Legislature which provided this method intended that as long as its procedure was being followed a justice of the Supreme Court could intervene and summarily determine upon the return of a writ of habeas corpus whether a person held in custody pending determination of his sanity is in fact insane. These considerations, in my *Page 412 opinion, are confirmed by the fact that under section 80 of the Insanity Law no justice of the Supreme Court except "of the judicial district, in which the alleged insane person resides or may be," has power to make an order of commitment, while a writ of habeas corpus may be issued and made returnable before any justice of the Supreme Court. In the present case it was issued and made returnable before a justice of the Second Department, though Ledwith resided and at the time was in the First Department. I do not think that his production thereafter in response to the writ could give a justice in the Second Department the power to commit him as an insane person if upon the hearing he determined that Ledwith was insane. Moreover, the commitment could be made only upon a certificate of lunacy signed by two qualified medical examiners and upon a verified petition, and I do not see how the justice hearing the writ could require a person authorized to make such a petition to do so. The result is that if the justice decided that at that time Ledwith was insane, he could only, in my opinion, dismiss the writ and remand him to Bellevue Hospital until the actual determination was made as prescribed by the statute. We should not hold that the Legislature has authorized so clumsy a procedure merely by doubtful implication.
It is urged, however, that Ledwith's commitment is not for a definite period but only "until the question of his sanity be determined" as prescribed by the statute, and that the authorities of Bellevue Hospital are required to have such determination made as promptly as possible. I concede that this may be true, but even though I should assume that a person committed as in this case is entitled to his discharge upon proof that he is being detained for an unreasonable time, and even though I should further assume that such discharge may be obtained upon a writ of habeas corpus, yet still I do not see how the court could upon the return of the writ pass *Page 413 upon any question except whether he is being detained an unreasonable length of time, and the question of his actual sanity or insanity would not be a determining consideration. Moreover, no claim is made by the petition that Ledwith has been detained an unreasonable length of time and that omission has not been supplied by the statement of the return that in the opinion of the physicians he is insane, for that statement still does not show that they have had thereafter reasonable opportunity to have the court determine the question of his sanity as prescribed in the statute.
In my opinion the only question that can be raised by the writ is whether Ledwith's detention under the commitment is lawful. I do not attempt to decide under what circumstances such detention would be unlawful, for the petition and return raise no issue on this point. The justice at Special Term has passed only upon the question of Ledwith's sanity and that question was not before him. For these reasons I believe that neither this court nor the Appellate Division could affirm his determination.
HISCOCK, Ch. J., CARDOZO and McLAUGHLIN, JJ., concur with CRANE and POUND, JJ.; ANDREWS, J., concurs in result; LEHMAN, J., dissents in memorandum.
Order reversed, etc.