Kaplan v. Kaplan

CourtNew York Court of Appeals
Citation256 N.Y. 366,176 N.E. 426
Decision Date19 May 1931


Action for separation by Lena Kaplan, by Sam Edelman, her guardian ad litem, against Isidore Kaplan. From an order of the Appellate Division (231 App. Div. 114, 246 N. Y. S. 551), reversing upon the law an order of the Special Term granting defendant's motion to dismiss the complaint, and denying the motion with leave to the defendant to answer, the defendant appeals. The Appellate Division certified certain questions (232 App. Div. 678, 247 N. Y. S. 851).

Order of the Appellate Division affirmed, and the questions certified answered in the affirmative.

Appeal from Supreme Court, Appellate Division, Second department.

Bernard Chambers, of New York City, for appellant.

Avel B. Silverman and G. A. Cymberg, both of New York City, for respondent.


By motion for judgment on the pleadings the defendant has raised the question whether an action for separation may be brought by an insane spouse through her guardian ad litem. The right to bring a matrimonial action in the civil courts is statutory. At common law only the ecclesiastical courts had jurisdiction.

The right to bring an action for separation is defined and regulated by article 69 of the Civil Practice Act (sections 1161-1165) and by some sections of article 70 (sections 1166-1176). These articles contain no express provision authorizing a guardian ad litem to bring such an action. The appellant argues that such authority may not be read into the statute by implication.

The statute does not expressly provide that an action for separation may be brought by an insane spouse through a guardian ad litem; neither does it expressly provide for an action by an infant through a guardian ad litem. Ordinarily, in the absence of some express limitation, a cause of action in favor of an infant or incompetent, arising either under the common law or conferred by statute, may be prosecuted by a guardian ad litem or special guardian. Neither infancy nor insanity deprives a person of the right to appeal to the courts for redress of wrongs or for vindication of asserted rights. It cannot be questioned that an infant may bring an action for a separation through a guardian ad litem. Unless from the nature of the cause of action or from other sections of the statute we can find an implication of a contrary legislative intent, then an incompetent spouse may also prosecute such an action through an appropriate officer appointed by the court. Without some basis for such an implication, we may not assume that the Legislature, though providing a remedy by action for the failure of a party to carry out matrimonial obligations, impliedly limited these remedies to a sane spouse.

Infancy or insanity may itself be a ground for annulment of a marriage, and in such cases the statute provides by whom such an action shall be brought, since those for whom the remedy is provided cannot protect their own rights. Then actions brought by others, not named in the statute, will not lie. Walter v. Walter, 217 N. Y. 439, 111 N. E. 1081. No inference can be drawn from these provisions of the statute that other matrimonial actions may not be maintained in behalf of an infant or incompetent. Certainly the Legislature never intended to deny them access to the courts for the protection of rights which the law grants to all injured parties.

At common law the ecclesiastical courts had power to grant a decree of annulment of marriage or a divorce a mensa et thoro. An action in the ecclesiastical courts for a limited divorce, analogous to an action for separation, might be maintained in behalf of a lunatic as well as actions for annulment of marriage. Parnell v. Parnell, 2 Phillimore, 158. It was pointed out in that case, brought in behalf of a lunatic, on the ground of the adultery of his wife, that unless such an action could be maintained a lunatic husband would be responsible for the support of a wife, entitled to no maintenance. Here the wife seeks maintenance to which she is entitled, if the allegations of the complaint are true, from a recalcitrant husband. Certainly, there is no presumption that the Legislature intended to deny remedy to a wife in such position.

In 1857 the English Matrimonial Causes Act (20 & 21 Vict., ch. 85) was enacted. A new court for divorce and matrimonial causes was established with jurisdiction of matrimonial actions and power to grant a divorce a vinculis. The statute does not expressly provide that an action for separation or divorce might be maintained by a lunatic, but the court did not question the right to maintain an action in behalf of a lunatic for separation. Woodgate v. Taylor, 2 Swabey & Tristram Rep. 512. The right to maintain an action for absolute divorce either in behalf of or against a lunatic was indeed questioned, and in Mordaunt v. Mordaunt, L. R., 2 Probate & Divorce, 103, the court held that because of its nature and results an action for divorce might not be maintained against an insane wife. Even in ...

To continue reading

Request your trial
9 cases
  • Mohrmann v. Kob
    • United States
    • New York Court of Appeals
    • 18 November 1943
    ...and appellants. LEWIS, Judge. This appeal presents for decision a question expressly reserved by the opinion in Kaplan v. Kaplan, 256 N.Y. 366, 176 N.E. 426. May an action for absolute divorce be maintained by the committee of an insane husband against the latter's wife? The marriage of the......
  • Brewington v. Brewington, 0091
    • United States
    • Court of Appeals of South Carolina
    • 14 December 1983
    ...attorney may institute in the name of a principal an action for a legal separation and related equitable relief. See Kaplan v. Kaplan, 256 N.Y. 366, 176 N.E. 426 (1931); Moore v. Moore, 205 Ga. 355, 53 S.E.2d 343 We deem inappropriate the analogy which the husband draws to an action for div......
  • Jacobs v. Newton
    • United States
    • New York Civil Court
    • 8 July 2003
    ...incompetent, arising either under the common law or conferred by statute, may be prosecuted by a . . . special guardian." (Kaplan v Kaplan, 256 NY 366, 367-368 [1931].) Here, Justice Belen's order gives Ms. Jacobs the power to "defend or maintain any civil proceeding" on behalf of Sarah Whe......
  • Sengstack v. Sengstack
    • United States
    • United States State Supreme Court (New York)
    • 13 September 1957
    ...There is nothing anomalous in the maintenance of an action for separation at the instance of an incompetent spouse. Kaplan v. Kaplan, 256 N.Y. 366, 176 N.E. 426. Where the spouse has been judicially declared incompetent in accordance with the governing provisions of this state, the action w......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT