Sengstack v. Sengstack

• Decision Date: 13 September 1957
• Citation: 7 Misc.2d 1012,166 N.Y.S.2d 576
• Parties: Mildred E. SENGSTACK, Plaintiff, v. John F. SENGSTACK, Defendant.
• Court: New York Supreme Court

Page 576

166 N.Y.S.2d 576

7 Misc.2d 1012

Mildred E. SENGSTACK, Plaintiff, v. John F. SENGSTACK, Defendant.

Supreme Court, Special Term, New York County, Part XII.

Sept. 13, 1957.

McGuigan & Kilcullen, New York City, for plaintiff.

Milton Schilback, New York City, for defendant.

FINE, Justice.

In this action for a separation brought by the plaintiff wife against the defendant husband, plaintiff has made a motion for temporary alimony and counsel fees, and defendant has made (a) a motion pursuant to Rule 106 of the Rules of Civil Practice for judgment dismissing the complaint on the grounds that the court lacks jurisdiction of the subject of the action and that the complaint does not state facts sufficient to constitute a cause of action, or, in the alternative, for an order pursuant to Rule 103 of the Rules of Civil Practice striking out certain specified paragraphs of the complaint as sham and frivolous and (b) a separate cross motion pursuant to Rule 107 of the Rules of Civil Practice for judgment dismissing the complaint on the ground that the plaintiff lacks legal capacity to sue, as well as for an order vacating the service of the summons, and dismissing the complaint on the ground that the attorneys appearing for plaintiff are without authority to represent her, or, in the alternative, for an order staying all proceedings on plaintiff's part until there be a determination pursuant to article 81 of the Civil Practice Act as to plaintiff's competency.

The complaint makes the following recitals. Plaintiff is and has been continuously since about February, 1952, 'mentally ill and of unsound mind and psychotic and incompetent to manage her person or property or affairs,' and in need of medical and psychiatric care and treatment and of hospitalization therefor. Plaintiff left defendant's abode and residence in this state in or about February, 1952, and has not since returned thereto, but at the time she left and at all times since, she was and is, because of her mental condition and incompetence, 'incapable of knowing the nature, quality and consequences of her acts' and incapable of abandoning defendant or of forming an intent to abandon him. Though defendant's net income has been at the rate of about $100,000 a year since about February, 1952, he made inadequate contributions of about $200 per month for plaintiff's support and maintenance, including medical care and treatment, from February, 1952, to October, 1953, and he has completely refused to make any provision for her since October, 1953.

On her motion plaintiff seeks an award of $325 per week for her maintenance and support pendente lite and a counsel fee of $10,000. The motion is supported by the affidavits of one Thayer A. Harvey, plaintiff's son by a prior marriage, and of one of the attorneys appearing herein for plaintiff. The reason assigned for the failure to submit an affidavit by the plaintiff herself is, as stated in the son's affidavit, that plaintiff is and has for some time been 'incompetent and in view of her condition that submission of her affidavit would be an empty gesture'.

The facts are to a large extent undisputed. Copies of federal income tax returns filed by the defendant, annexed as exhibits to the son's affidavit, indicate that defendant had a gross income of over $100,000 during each of the years 1951 through 1954 and that he filed a joint income tax return on behalf of himself and his wife for each of those years, as the result of which, it is asserted, he realized substantial tax savings for himself. The allegations made in plaintiff's moving papers on this score are, indeed, not controverted by defendant. Defendant further does not deny that he has not contributed at all to the support, maintenance or treatment of his wife since about October, 1953, and that he made payments prior thereto, going back to February, 1952, of only $200 a month. There also seems to be little or no dispute that plaintiff has been suffering from a serious mental illness since at least February, 1952, when she left New York City, where she was at the time living with defendant, to seek treatment for her illness. The circumstances with respect to her leaving New York City appear to be the subject of some dispute. Defendant maintains that he was informed by a psychiatrist, a Dr. Chaney, who examined plaintiff in January and February, 1952, that in his opinion she was paranoiac and that it was advisable for her to enter Bellevue Hospital in New York City for appropriate observation and treatment. Plaintiff's son, on the other hand, has presented proof tending to show that another psychiatrist, a Dr. Burchell, to whom plaintiff was referred by Dr. Chaney, examined plaintiff on February 15, 1952, and found her to be schizophrenic and paranoiac, but deemed it inadvisable for plaintiff to be sent to Bellevue and was of the opinion that treatment in some private institution would be more beneficial for her. The papers indicate that plaintiff herself was averse to going to Bellevue, and there are suggestions even in the papers submitted by defendant that it might have been necessary to use some measure of force to take plaintiff to that institution.

In any event, it seems that plaintiff left New York City about February 16, 1952, and, upon Dr. Burchell's recommendation, entered a private institution known as the Institute of Living in Hartford, Connecticut. Defendant, however, refused to pay that Institute's bills for his wife's treatment though it appears that he had previously advised his wife that she could consult a physician of her choice and follow the treatment recommended by such physician. In consequence, plaintiff, being without means to pay for such treatment, was compelled to leave that institution in March, 1952, though the Institute advised defendant that she was in need of further hospitalization.

Thereafter plaintiff, after first staying with other relatives, went to live with her son, Thayer, in Minnesota. Upon a psychiatrist's advice, she received treatment for a time in the mental ward of a hospital in St. Paul, Minnesota, but was compelled to leave that hospital upon defendant's refusal to pay the hospital's and doctors' bills. She subsequently became a patient in a State Hospital in Hastings, Minnesota, and was provisionally discharged from that hospital in the custody of her son in May, 1954.

It further appears that in July, 1953, the Probate Court of Hennepin County in Minnesota granted letters of general guardianship of plaintiff's person and estate to her son, Thayer A. Harvey, on a petition executed by plaintiff herself which stated that 'because of illness resulting in imperfection of mentality' she was 'incompetent to manage her person and estate'. In May, 1956, the same Probate Court made an order denying plaintiff's application for termination of the guardianship and for her restoration to capacity, making findings that plaintiff was 'mentally ill, * * * not of sound mind, * * * psychotic, * * * incapable of managing her person and estate, and * * * in need of continuing psychiatric and medical care and treatment'. It seems that plaintiff is still in Minnesota, but the papers do not make it clear whether she is still receiving medical care and treatment.

Defendant's position appears to be that he has at all times been ready, able and willing to provide necessary medical treatment for his wife, but has insisted that such treatment be administered to her in New York, and he attempts to justify on that ground his refusal to make any payments for her support, maintenance and treatment during the last several years.

Defendant further raises the legal objection that since the complaint on its face alleges that plaintiff is incompetent, the conclusion necessarily follows that plaintiff lacks legal capacity to bring this action. That contention, however, appears to be without merit, in view of the fact that plaintiff has never been judicially declared in this state to be incompetent to manage her affairs.

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 would be maintainable only by a committee or a guardian ad litem. Civ.Prac.Act, §§ 236, 207; Kaplan v. Kaplan, supra. Where, however, there has been no such adjudication of incompetency, the wife herself may bring the action for separation in her own right. See Anonymous v. Anonymous, 2d Dept., 3 A.D.2d 590, 594, 162 N.Y.S.2d 984, 988.

Section 236 of the Civil Practice Act provides in part that 'A party who is of full age may prosecute or defend a civil action in person or by attorney unless he has been judicially declared to be incompetent to manage his affairs.' (Emphasis supplied.) This section has been authoritatively interpreted by the Appellate Division of the Second Department in Anonymous v. Anonymous, supra, 3 A.D.2d 590, 162 N.Y.S.2d 984, as leaving unimpaired the legal capacity to sue of an incompetent person who has not been judicially declared as such in this state. The court thus stated (3 A.D.2d at page 594, 162 N.Y.S.2d at page 988):

'This section is to be applied according to its terms. It refers to a person judicially declared to be incompetent to manage himself or his property in a proceeding pursuant to the provisions of the Civil Practice Act, and, in conformity with the principles above summarized, it has been uniformly determined that a person of unsound mind but not judicially declared incompetent may sue and be sued in the same manner as any ordinary member of the community (see Jacobs v. State of New York, 175 Misc. 561, 24 N.Y.S.2d 122; Matter of Palestine's Estate, 151 Misc. 100, 270 N.Y.S. 844, supra, and cases therein cited.)' (Emphasis supplied.)

Defendant, however, urges that the...