1 N.Y.S. 453 | N.Y. Sup. Ct. | 1888
We dar 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
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 order has authorized the committee to aid in the defense. The estate of the lunatic is-abundantly protected. Order reversed, with $10 costs, and printing disbursements, and motion denied, with $10 costs, to be paid by committee out of the-estate of defendant.
Ingalls and Landon, JJ., concurred.