Guerin v. Guerin

127 Misc. 745

• Court: New York Supreme Court
• Decided: July 28, 1928
• Status: Published

Opinion

Gibbs, J.

The complaint alleges that the plaintiff and defendant intermarried on the 6th day of July, 1907; that during the months of July and August, 1910, defendant committed acts of cruel and inhuman treatment upon the plaintiff rendering it unsafe for her to continue to Uve with him; that since August, 1910, defendant has failed, refused and neglected to provide for thp support and maintenance of plaintiff and their two infant children; and that during the past sixteen years plaintiff has endeavored to locate the defendant but was unsuccessful until the time of the institution of the action. The answer denies the material allegations of the complaint except that it admits' plaintiff left the defendant on July 21, 1910, and that he has not1 contributed to the support of the plaintiff and their children.

As a separate, distinct and complete defense the defendant alleges “ that the aUeged cause of action set forth in the complaint did not accrue within ten years next preceding the commencement of this action.” He now moves for judgment dismissing the complaint, contending that plaintiff’s cause of action is barred by the Statute of Limitations. It has been held that section 53 of the Civil Practice Act relative to the commencement of actions within ten years is appUcable to actions for separation on the ground of cruel and inhuman treatment. (Sturm v. Sturm, 80 Misc. 277.) In that case the court said: “ But the difficulty here is that the acts and conduct alleged and relied on to maintain this action are all acts and conduct alleged to have taken place over sixteen years ago, and nothing is set forth subsequent to those dates. Those acts, owing to the Statute of Limitations, are not now available to the plaintiff to maintain her cause of action. * * * Having lost her right to maintain this action, owing to the Statute of Limitations, the plaintiff can reinstate herself to the right of maintenance and support only by offering to resume her wifely duties.” In the case at bar the complaint alleges acts substantially the same as those in the Sturm case. The additional fact appears that for sixteen years plaintiff endeavored to locate the defendant and has just succeeded. It may be that she has demanded that he provide for her and that he has since refused, but she has not alleged this essential fact.

This being an equity action in which public policy is involved the plaintiff should be given every opportunity of establishing her case. Accordingly the complaint is dismissed with leave to serve an amended complaint within twenty days. Submit order.