App. Div.] First Department, November, 1913. ter was sent to a referee, who reported that the respondents were entitled to recover the sum of $3,566.47. His report was subsequently confirmed by an order of the Supreme Court, and the temporary administrator was directed to pay said sum, together with the costs of the proceeding, to be taxed, including the fees of the referee and stenographer. The appeal is from that part of the order which directs the temporary administrator to pay. By stipulation the sole question sought to be raised by the appeal is "Whether the Supreme Court has power or jurisdiction to direct the temporary administrator of the deceased incompetent's estate to pay the amount awarded by the referee in his report and to grant the petitioner's costs in this proceeding." The temporary administrator was appointed by an order of the surrogate, and his right to make such appointment is unquestioned. He is subject to the control of the surrogate with reference to all matters connected with the estate he represents. Upon his appointment he takes into his custody and under his control all the assets. This, however, is merely to preserve the same until an executor or administrator, as the case may be, is appointed, when his duties will cease, and he must then turn over to such person whatever may have come into his hands. The statute requires him, within ten days. after any money belonging to the estate comes into his hands, to deposit it with a depositary designated by the surrogate (Code Civ. Proc. § 2678); if he fails or neglects to make such deposit within the time stated, then the surrogate must, upon the application of a creditor or person interested in the estate, make an order directing him to do so forthwith, or to show cause why a warrant of attachment should not issue against him (Id. § 2679); when he makes the deposit he cannot thereafter withdraw it except upon the order of the surrogate, a certified copy of which must be presented to the depositary (Id. § 2680); and if the depositary should pay out the money thus deposited without an order directing the payment to be made, it, as well as the temporary administrator, would become personally liable. He is not bound to pay claims against the estate represented by him, nor can he legally do so unless authorized by the surrogate. Since as to the funds held by him he is a mere First Department, November, 1913. [Vol. 158. custodian, and as to the disposition of the same solely and exclusively subject to the orders of the surrogate, he cannot comply with that part of the order appealed from, and if he did it would be in violation of the statute and subject him to personal liability. No depositary would pay out the money, even though he should order it, in the absence of an order of the surrogate. The provisions of the statute safeguarding the funds held by a temporary administrator are clear and specific. The Supreme Court has no power to override such statutes, and if it attempts to do so it acts without jurisdiction. The attorneys for the respondents seem to recognize this fact, because in the brief presented it is suggested that when the order appealed from was made it thereupon became the duty of the temporary administrator to apply to the surrogate under section 2680 of the Code of Civil Procedure for an order authorizing the withdrawal of the amount directed to be paid, and if the surrogate refused to make such an order, then the temporary administrator should apply for a mandamus to compel him to do so. Obviously, the enforcement of a valid order of the Supreme Court does not depend upon any such contingency. Once made it must be obeyed, otherwise the party directed to pay is liable to be punished for contempt. The law is not so unreasonable as to punish one for contempt for not doing an act which it makes impossible. As to the allowance of costs, the court had the power to make the same, and under the circumstances I see no reason to interfere with it. My conclusion is that the court was without jurisdiction to direct the payments, and to that extent the order appealed from is modified by striking out such provisions, and as thus modified affirmed, with ten dollars costs and disbursements to the appellants. INGRAHAM, P. J., LAUGHLIN, CLARKE and SCOTT, JJ., concurred. Order modified as directed in opinion, and as modified affirmed, with ten dollars costs and disbursements. Order to be settled on notice. App. Div.] Second Department, October, 1913. In the Matter of HARRY K. THAW, an Inmate of the State Hospital at Matteawan, Dutchess County, N. Y. In re Permission to See Mother and Counsel Privately. HARRY K. THAW, Appellant, Respondent; THE PEOPLE OF THE STATE OF NEW YORK and Others, Respondents, Appellants. Second Department, October 31, 1913. Incompetent persons - commitment of insane criminal to State hospital court - Supreme Court cannot order suspension of rule of State hospital - State Lunacy Commission necessary party. Where a defendant acquitted of crime on the ground of insanity has been committed to a State hospital for the criminal insane, pursuant to the provisions of section 454 of the Code of Criminal Procedure, he is held not as a ward of the court subject to its jurisdiction, but as a ward of the State itself in its own public institution erected and maintained by the State in the exercise of its prerogative as parens patriæ and as the possessor of the police power. Hence, the Supreme Court has no jurisdiction to order that a person so committed to a State hospital may have interviews with attorneys and relatives in private contrary to a rule of said institution adopted pursuant to statutory authority providing that such interviews must be in the presence of assistants or attendants of the institution. While the Constitution continues the Supreme Court "with general jurisdiction in law and equity," it does not give to it exclusively the prerogative of the State as parens patriæ and of the police power in the premises, for the Constitution also provides that the Legislature shall provide for a State Commission in Lunacy with visitorial powers over institutions used for the care and treatment of the insane. In any event the Supreme Court cannot entertain a motion for an order suspending the rule aforesaid if the State Lunacy Commission is not made a party to the proceeding. CROSS-APPEALS by Harry K. Thaw and the People of the State of New York and others from an order of the Supreme Court, made at the Orange Special Term and entered in the office of the clerk of the county of Dutchess on the 21st day of April, 1913. William Vanamee, Henry Hirschberg, William A. Stone and Albert H. F. Seeger, for Harry K. Thaw. Franklin Kennedy, Deputy Attorney-General [Thomas Carmody, Attorney-General, with him on the brief], for the People. JENKS, P. J.: Second Department, October, 1913. [Vol. 158. These are cross-appeals from an order of the Special Term. There is a rule and regulation of the State hospital at Matteawan that patients may see their relatives or their personal attorneys on any day of the week between the hours of two and five P. M. except Sundays and legal holidays, but such visits must be made in the presence of one of the assistants or attendants of the institution. The rule is of uniform application to the 817 inmates of the hospital. The Special Term upon motion ordered the Superintendent of State Prisons and the acting superintendent of this hospital to permit certain attorneys at law, together, or any one of them, to confer privately with Mr. Thaw, an inmate of this hospital, in a room to be assigned for that purpose, not oftener than once a week and not longer than two hours at a time, but not on any day when visitors were excluded by rule of the institution, and denied permission to Mr. Thaw to see his mother without the presence of an attendant. It is not contended that specific authority is vested in the Supreme Court to make such rules or regulations, or to annul, to abrogate or to amend them, or that the court is clothed with any right of direct summary review of them. But the court avowedly asserted jurisdiction upon this proposition: "Thaw was committed to the hospital by this court, which also has the power to discharge him, upon proof that his discharge would not be dangerous to the public peace and safety; and being thus in the custody and under the control of the court, I think the court has the power to make any order in respect to his treatment while in confinement, not inconsistent with any reasonable rule or regulation of the hospital, or the Prison Department of this State." It seems to me that the rule made by the court is "inconsistent," in that it is contrary and even contradictory to the present rule, which it may be observed provides for interviews with attorneys. Mr. Thaw was not committed by the court in the exercise of its jurisdiction over the person and property of an incompetent by the prescribed procedure therefor, but pursuant to section 454 of the Code of Criminal Procedure, and he is held, not as the ward of the court subject to its direction, but by the State itself in its own App. Div.] Second Department, October, 1913. public institution erected and maintained by the State in the exercise of its prerogative as parens patriæ and as the possessor of the police power. (Matter of Thaw, 138 App. Div. 91, 93, 94.) He then is the ward of the State, not of the Supreme Court. It has been pointed out heretofore that our law respecting idiots and insane persons is derived from the law of England in that the care and custody of such persons were a part of the prerogative of the sovereign, and that "On our separation from Great Britain at the time of the Revolution, so much of the law, as formed a part of the king's prerogative which was applicable under our form of government, was vested in the People of the State and by legislative enactments was transferred to the chancellor," etc. (Sporza v. German Savings Bank, 192 N. Y. 8; Mormon Church v. United States, 136 U. S. 1, 51, 56 et seq.; Matter of Thaw, 138 App. Div. 91.) While it is entirely true that the present Constitution of New York (Art. 6, § 1), adopted in 1894, continues the Supreme Court "with general jurisdiction in law and equity," this provision is not to be read as a devolution wholly and exclusively upon the Supreme Court of the prerogative of the State as parens patric and of the police power in the premises. The same instrument, by section 11 of article 8, provides that the Legislature shall provide for a State Commission in Lunacy which "shall visit and inspect all institutions, either public or private, used for the care and treatment of the insane," and section 12 of article 8 provides for the appointment of the Commission by the Governor by and with the advice and consent of the Senate. The Legislature enacted the Insanity Law providing for such Commission, and clothed it with broad powers of visitation and with ample powers to make such visitation both practical and effective. (See Consol. Laws, chap. 27 [Laws of 1909, chap. 32], §§ 3, 6, 9, 92; Matter of Thaw, supra, 94, 95.) This Commission was designated in 1912 as the State Hospital Commission with similar powers. (See Insanity Law, §§ 3, 9, as amd. by Laws of 1912, chap. 121.) And the Legislature has provided, by section 125 of the Insanity Law (renum. § 145 by Laws of 1912, chap. 59): "Communications with patients. No person not authorized by law or by written permission from the Superintendent |