Sengstack v. Sengstack

Peck, P. J. and Botein, J. (dissenting).

The complaint in this action for a separation affirmatively alleges that plaintiff is of unsound mind and incompetent to manage her person, property, or affairs. While it is true that the cases hold that a party may prosecute an action, under section 236 of the Civil Practice Act, unless he has been judicially declared to be incompetent, none of the cases has presented the condition of an acknowledgment, indeed assertion, of the plaintiff’s incompetency by the plaintiff herself. We think that where incompetency is conceded, and certainly where the…