Gregg v. Gregg — 1 N.Y.S. 453

Majority

p. 453

Gregg v. Gregg.

(Supreme Court, General Term, Third Department.

May 17, 1888.)

Headnote

Divorce—When Action will be Stated—Adjudication oe Habitual Drunkenness.

Under Code Civil Proc. ÍT. M. § 2345, providing that an action to enforce a conveyance of real estate, or of an interest therein, may be maintained against an infant or a person incompetent by reason of lunacy, etc., or habitual drunkenness, to manage his aSairs, an action for separation from bed and board, fonever, on the ground of cruel treatment, will not be stayed because defendant h.as been adjudged an habitual drunkard, and a eommitteebf his estate, but not of his person, appointed, with authority to assist in the defense, as the court having control of the estate can protect it when the question of alimony arises.

Appeal from special term, Saratoga county; Tafean, Justice.

In March, 1887, Sarah A. Gregg commenced an action against Amasa 1ST. ■Gregg for a separation from bed and board, forever. Defendant appeared .and answered, making an issue of certain facts alleged in the complaint. Pending the action., unheard, and in August, 1887, by a decree of the court, ■defendant was declared an habitual drunkard, and a committee of his estate, but not of his person, was appointed. Afterwards the court made an order ■continuing the proceedings for a separation, and granting permission to the ■committee to aid and assist the defendant in his defense to the action, but without prejudice to the right of defendant to move for an order staying ^plaintiff’s proceedings in the action for separation. Thereupon, afterwards, plaintiff having noticed the case for trial, such motion was made by defendant, January 16, 1888, at circuit and special term, before Justice Tapfan, who made an order of that date, staying plaintiff’s proceedings until further order of the court. From this order plaintiff appeals to the general term. Code ■Civil Proc. § 2345, is as follows: “In either of the following cases an action may be maintained against an infant, or a person incompetent to manage his affairs by reason of lunacy, idiocy, or habitual drunkenness, to procure a judgment, directing a conveyance .of real property, or of an interest in real property: (1) Where the infant or incompetent person is seized or possessed ■of real property, or interest in real property, by way of mortgage, or only in trust for another. (2) Where a valid contract for the sale or conveyance of the real property, or interest in real property, has been made; but a conveyance thereof cannot be made by reason of the infancy or incompetency of the person in whom the title is vested.”

Argued before Learned, P. J., and Ingalls and Landon, JJ.

I. C. Ormsby, for appellant. E. L. Fursman, for respondent.

We dar not think that the appointment of a committee of defendant’s estate affords any reason why the plaintiff should be stayed from prosecuting her action for separation. That action affects her personal rights, which he is said to have abused. The defendant’s counsel cites section 2345 •of the Code. That section does not intimate that only such actions as are there mentioned may be maintained. It is found in title 7, relative to the disposition of real estate of infants, etc. It certainly does not limit the actions

p. 454

which may be maintained against an infant, etc., to those mentioned in that section.

The defendant’s counsel cites authorities showing that courts have restrained, in some cases, actions against a lunatic to collect debts, or to affect his real or personal estate after a committee had been appointed, and after his estate had thus come into the hands of the court. The present case is quite different. Its immediate object is the separation from bed and board, on the ground of cruel treatment. So far as such separation may be followed by a. provision for alimony, such provision is entirely within the power of the court, and the court is fully competent in this action to protect the estate of the lunatic, now within its control. We do not see why the court cannot act as wisely in regard to alimony in this action, as it could in an application by way of motion to direct the committee; and since the plaintiff is plainly entitled to proceed in this action, so far as the principal matter, that of separation, is concerned, it is highly proper that the subject of alimony be also disposed of in the same action. The court has already authorized the continuance of the action by the order of Mr. Justice Ingalls; and the same order has authorized the committee to aid in the defense. The estate of the lunatic is-abundantly protected. Order reversed, with $10 costs, and printing disbursements, and motion denied, with $10 costs, to be paid by committee out of the-estate of defendant.

Ingalls and Landon, JJ., concurred.