Gregg v. Gregg — 17 N.Y. St. Rep. 966

Majority

p. 966

Sarah A. Gregg, App’lt, v. Amasa N. Gregg, Resp’t.

(Supreme Court, Geneml Term,, Third Department,

Filed May, 1888.)

Headnote

Husband and "wife—Action fob sepauation—May be pbosecuted AFTEB APPOINTMENT OF COMMITTEE OF ESTATE OF BUSBAND AS HABITUAL DBUNKABD.

_ The plaintiff commenced proceedings against her husband for a separation, on the ground of cruel and inhuman treatment, in which action he appeared and answered. While the action was pending, the same court judicially declared him an habitual drunkard, and appointed a committee of his estate. Afterward the court granted permission to the said committee to aid and assist the defendant in his' defense, etc. Held, that the appointment of a committee of defendant’s estate was not a reason why the plaintiff should be stayed from prosecuting her action for separation.

p. 967

Appeal from an order made at the Saratoga county special term staying all proceeding in this action until the further order of the court.

The plaintiff commenced this action against the defendant, who was her husband, for a separation from bed and board, alleging as a reason his cruel and inhuman treatment.

The defendant appeared and answered, and took issue upon the facts alleged in the complaint. While the action was pending, proceedings were taken in the supreme court, which resulted in the defendant being declared an habitual drunkard and a committee of his estate being appointed. Afterward the court made an order continuing this action, and granting permission to the committee to aid and assist the defendant in his defense. The order stated that it was without prejudice to the defendant’s right to apply for an order staying the plaintiff’s proceedings in this order. Thereafter the application resulting in the oi’der repealed from was made.

J. C. Ormsby, for app’lt; E. L. Fursman, for resp’t.

We do 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 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

p. 968

order has authorized the committee to aid in the defense. The estate of the lunatic is abundantly protected.

The order should be reversed, with ten dollars costs and printing disbursements, and motion denied, with ten dollars, costs, to be paid by committee out of the estate of defendant.