Zalinsky v. Zalinsky

103 Misc. 308 | N.Y. Sup. Ct. | 1918

Greenbaum, J.

This action is brought for an annulment of the marriage of the parties herein on the ground that the defendant was an idiot at the time of the marriage. No order has been made requiring a “ copy of the summons to be also delivered, in behalf of the defendant to a person designated in the order,” as provided by section 427 of the Code of Civil Procedure. The only order that was made was one permitting service of the summons on the defendant at the insane asylum at which he was confined and upon the superintendent of the said asylum. The sufnmons was served as directed in the order. A motion is now made by the plaintiff asking that an order be granted appointing a “ .special guardian of the defendant in this action.” It is to be observed that the defendant was confined in the Central Islip State Hospital merely under an ex parte commitment. It is true that section 477a of the Code of Civil Procedure expressly provides that the Supreme Court may appoint a guardian ad litem or special guardian “ for an incompetent person, at any stage in any action or proceeding when it appears to the court necessary for the proper protection of the rights and interest of such * * * incompetent person,” etc. It is to be observed that section 427 of the Code provides that where the court has reasonable ground to believe that one “ is mentally incapable adequately to protect his rights, although not judicially declared to be incompetent to manage his affairs,” an order may be made “ requiring a copy of the summons to be also delivered, in behalf of the defendant, to a person designated in the order, and that service of the summons should not be deemed complete, until it is so delivered,” thus raising a serious doubt as to whether or not the words “ incompetent person,” referred to under section 477a, are intended to refer to one who has been “-judicially declared to be an incompetent,” the language used in section 427. That section has been construed in American Mortgage Co. v. Dewey, 106 App. Div. 389. The court there held in effect that its provisions should be liberally construed under the broad equity powers of the court, so that the person designated should also be “ required to look after the interest of the alleged incompetent defendant.” An order will not be granted as prayed for, but the plaintiff may submit a proposed order for the appointment of a person, as required by section 427 of the Code, including in the order that the person so designated shall be required to look after the interest of the incompetent, and providing that a copy of said order shall be served upon the incompetent as well as upon the superintendent of the Central Islip State Hospital, the place where the defendant is confined.

Ordered accordingly.