Lichtenstein v. Lichtenstein

• Decision Date: 30 June 1970
• Citation: 312 N.Y.S.2d 330,34 A.D.2d 945
• Parties: Abraham LICHTENSTEIN, Plaintiff, v. Sarah G. LICHTENSTEIN, Defendant. Harold LICHTENSTEIN and Hyman Grill, Executors of the Estate of Abraham Lichtenstein, Deceased, Appellants, v. Osborne A. McKEGNEY, Successor Committee of Defendant Sarah G. Lichtenstein, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 330

312 N.Y.S.2d 330

34 A.D.2d 945

Abraham LICHTENSTEIN, Plaintiff, v. Sarah G. LICHTENSTEIN, Defendant.

Harold LICHTENSTEIN and Hyman Grill, Executors of the Estate

of Abraham Lichtenstein, Deceased, Appellants, v. Osborne A. McKEGNEY, Successor Committee of Defendant Sarah

G. Lichtenstein, Respondent.

Supreme Court, Appellate Division, First Department.

June 30, 1970.

H. Grill, New York City, for appellants.

O. A McKegney, New York City, for respondent.

Before STEVENS, P.J., and EAGER, CAPOZZOLI, NUNEZ and McNALLY, JJ.

PER CURIAM.

Order, entered on November 12, 1969, modified on the law, on the facts and in the exercise of discretion, to the extent of striking from the third ordering paragraph that portion which directs that Osborne A. McKegney, the Successor Committee of defendant, is entitled to the sum of $44,100 and further modifying said order to the extent of striking the first, second, fourth, fifth, seventh and ninth ordering paragraphs and further modifying said order by striking from the sixth ordering paragraph all reference to amounts, other than the amount of $18,109.78, and, as so modified, the order is affirmed, without costs and without disbursements, and the matter remanded to Special Term for further proceedings not inconsistent herewith.

The majority of this Court affirms the award of $18,109.78, plus interest, to the defendant, because this is the sum that the plaintiff misappropriated during the time that he acted as her Committee in the years 1947 to 1960. Plaintiff improperly used defendant's funds for her support for all those years when he had ample funds of his own which should have been used. Under the law the plaintiff-husband was legally liable for the support of his incompetent wife, the defendant herein, if financially able. (Matter of Fox, 250 App.Div. 31, 293 N.Y.S. 468, aff'd 275 N.Y. 604, 11 N.E.2d 777.) Accordingly, in this case, the late Mr. Justice Klein, in his decision of April 12th, 1967, specifically said:--

'(t)he husband's obligation to support his incompetent wife is measured not alone by his duty to keep her from becoming a public charge, but rather in accordance with his means, even after an annulment grounded on five years incurable insanity'.

Relying on the poor financial condition of plaintiff, as falsely represented by him, the Court, in granting the annulment, directed him to pay $15. per month for the support of the defendant. However, in its order the Court provided that:--

'* * * In the event of any change in the financial condition of the plaintiff, further application may be made by the Department of Mental Hygiene, the plaintiff or the defendant for the modification of the decree entered herein. * * *'.

In Matter of Fox, supra, at p. 34 of the Appellate Division report, 293 N.Y.S. at p. 471, the Court said:--

' * * * The proper rule seems to be that the husband is liable for the support of his incompetent wife, if he is financially able, unless it would be inequitable to compel him to furnish support. * * *

'The husband's ability to furnish support is thus made a condition to the obligation.'

Later, in the same opinion, the Court discussed the case of Matter of Cornell, 242 App.Div. 832, 275 N.Y.S. 82, and said 250 App.Div. at p. 36, 293 N.Y.S. at pp. 473--474, the following:--

'That decision appears to mean that, in an appropriate action or proceeding, the husband may, if the facts warrant it, be held liable for his incompetent wife's support without regard to a previous order fixing such liability. The same conclusion can be drawn from Matter of Marsh, (242 App.Div. 290, 275 N.Y.S. 79). In the more recent case of Matter of Moore (245 App.Div. 762, 282 N.Y.S. 102) this court affirmed an order surcharging the committee of an incompetent, who was also her husband, for sums paid out of her estate for maintenance at a state hospital. It does not appear that any previous order had been made establishing the husband's liability.

'Our conclusion on this question is that the husband's liability to the committee for his wife's support may be established in any proceeding or action in which both parties are before the court and the issue is fairly raised, and that no previous order of the court is necessary to set the liability in motion. * * *'.

As to the item of $44,100 we find that there is insufficient evidence in the record before us to justify this award. While we agree with the conclusion that a fraud was perpetrated by the plaintiff, nevertheless, the only reason given by the Court below for this award is that it represents about 20% Of plaintiff's annual income for the years 1947 to 1960. But there is no evidence in the record which...