Majority
p. 1042In the Matter of the Application of Claude Sagendorf, as Welfare Officer of the Town of Brutus, County of Cayuga, State of New York, Respondent, for an Order to Compel the Support of Marjorie Van Norstrand and Ruth Van Norstrand, by Claude Van Norstrand, Father, Defendant, and Maude Van Norstrand, Grandmother, Appellant.
Order reversed on the law and facts, without costs of this appeal to either party, and a new trial granted. Memorandum: The father of the dependents on relief being primarily liable for their support, and the appellant, grandmother, being only secondarily liable, we hold that the finding, which is implicit in the order appealed from, that the father is unable to respond to his duty to support his children is contrary to and against the weight of the evidence. We also hold that it was improper to charge the entire cost of the proceeding against the appellant. All concur. (The order directs a grandmother to contribute to the support of grandchildren.) Present — Sears, P. J., Crosby, Lewis, Cunningham and Dowling, JJ.