Sengstack v. Sengstack

• Decision Date: 25 June 1958
• Citation: 176 N.Y.S.2d 337,151 N.E.2d 887,71 A.L.R.2d 1237,4 N.Y.2d 502
• Parties: , 151 N.E.2d 887, 71 A.L.R.2d 1237 Mildred E. SENGSTACK, Respondent, v. John F. SENGSTACK, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 337

176 N.Y.S.2d 337

4 N.Y.2d 502, 151 N.E.2d 887, 71

A.L.R.2d 1237

Mildred E. SENGSTACK, Respondent, v. John F. SENGSTACK, Appellant.

Court of Appeals of New York.

June 25, 1958.

The following questions were certified:

'1. Did Special Term commit error in denying that part of defendant's cross-motion which sought judgment pursuant to Rule 107 of the Rules of Civil Practice dismissing the complaint on the ground that the plaintiff has not legal capacity to sue?

'2. Did Special Term commit error in denying that part of defendant's cross-motion which sought an order vacating the service of the summons herein and dismissing the complaint on the ground that McGuigan & Kilcullen, who purport to be the attorneys for the plaintiff, had no authority from the plaintiff to institute and have no authority from the plaintiff to prosecute this action?

'3. Does the complaint herein state facts sufficient to constitute a cause of action?

'4. Did Special Term have power to make its appointment of a Special Guardian for plaintiff?

'5. Did Special Term commit error in directing that the fees and disbursements of the Special Guardian shall be paid by the defendant, as and when allowed or approved?'

Milton Schilback, New York City, for appellant.

E. Gayle McGuigan, New York City, for respondent.

Arthur Karger, New York City, sp. guardian, for Mildred E. Sengstack, respondent.

DESMOND, Judge.

In this separation suit brought by wife against husband the wife moved for temporary alimony and counsel fees and the husband cross-moved to dismiss the complaint for lack of jurisdiction, lack of standing to bring the action and failure to state a cause of action. Special Term made an order which denied defendant's motion, awarded plaintiff temporary alimony of $300 a week, directed, the payment of a counsel fee, and appointed a special guardian to conduct an investigation into the facts and to report to the court his recommendations as to the appropriate course of action to be taken for the care and protection of plaintiff's rights and interests in the light of her mental condition. Finally, Special Term ordered that the fees of the special guardian and his disbursements, including the expenses of a trip to Minnesota or Indiana or both, should be paid by defendant as necessary litigation expenses of plaintiff.

On appeal, Appellate Division, First Department, affirmed by a divided vote, two Justices dissenting and voting to dismiss the complaint on the ground of plaintiff's incapacity to sue because of her mental condition. The Appellate Division then granted defendant leave to appeal to this court, certifying five questions which in effect ask us to decide whether defendant's cross motion for dismissal should have been granted on the ground of lack of capacity to sue or on the ground of lack of authority in plaintiff's attorneys to bring the action, and whether Special Term had power on this showing to appoint a special guardian for plaintiff and to direct that his fees and expenses be paid by defendant.

The answers to these certified questions will be governed by the effect of the allegation in the complaint that 'At all times hereinafter mentioned, plaintiff was, and she still is, mentally ill and of unsound mind and psychotic and incompetent to manage her person or property or affairs' and by other references in the complaint to her mental condition. Those statements, ordinarily surprising ones to be made by plaintiff about herself, were, however, an essential part of the cause of action she sought to plead for a separation on the ground of failure to support her (see Goodale v. Lawrence, 88 N.Y. 513, 520). Plaintiff alleged that in February, 1952, after the parties had been married for about 12 years and while they were residing together in this State, she left the abode of defendant at a time when she was (and ever since has been) incapable of knowing the nature, quality and consequences of her acts in leaving defendant's home and failing to return there and that, therefore, her act in so leaving did not constitute an abandonment. The further allegations of the complaint are that at the time plaintiff left defendant, and ever since, defendant well knew of plaintiff's mental illness, that despite his large net income of about $100,000 a year he has neglected and refused to provide more that 200 per month for her support and maintenance which is far below, it is alleged, her needs for maintenance, support and medical treatment, and that since October, 1953 he has failed and refused to pay anything at all for her support, maintenance or treatment. It was found and undisputed below that plaintiff had been mentally ill for some time before she left her husband in February, 1952, and that in that month, accompanied by her son by a former marriage, she left New York and lived with other relatives until December, 1952 when she went to Minneapolis where she has since been living with her son. During 1951 and 1952 plaintiff had undergone treatments in two New York hospitals and had been examined by several physicians who had reported to defendant that his wife was paranoiac and that she had been mentally ill for several years. After she left defendant, plaintiff was a patient for some months in a hospital in St. Paul where she was treated by a psychiatrist who gave it as his opinion that, according to the history given to him, plaintiff's life with her present husband is a principal cause of her mental illness. This physician's affidavit states also without dispute that defendant has failed to pay the physician's bill for services or the bills of the hospital in St. Paul.

In 1953 a probate court in Minnesota, on an application signed by plaintiff alleging her incompetency, had appointed her son general guardian of her person and estate but it appears and is not disputed by defendant that this Minnesota order was made without hearing or testimony, and that it contained no finding of incompetency. Defendant at various points in his argument relies on this Minnesota order as a binding adjudication of incompetency sufficient to deprive plaintiff of legal capacity to sue. However, as we have said, the order was made ex parte without a hearing, contains no adjudication of mental incompetence and, more importantly, is not conclusive or binding on the New York courts since plaintiff was, as is in effect conceded here, a domiciliary of New York (see Matter of Curtiss, 134 App.Div. 547, 551, 119 N.Y.S. 556, 559, affirmed 197 N.Y. 583, 91 N.E. 1111). In February, 1956 plaintiff petitioned the same Hennepin County Probate Court of Minnesota for an order 'for Restoration to Capacity' but after hearings and testimony by psychiatrists and a finding that she continued to be mentally ill and incapable of managing her person and estate the Minnesota court denied the petition to terminate the guardianship. There was another prior legal proceeding between the parties which should be mentioned. In November, 1953, on the application of plaintiff's son, a guardian ad litem was appointed for her and that guardian ad litem brought for her an action in Supreme Court, New York County, against her husband for a separation and an accounting but later the appointment of the guardian ad litem was vacated and the suit dismissed on the apparent ground, among others, that since there had been no...