Goetschins v. Hunt — 5 N.Y.S. 307

Majority

p. 307

Goetschins v. Hunt.

(Supreme Court, General Term, Second Department.

May 18, 1889.)

Headnote

Parent and Child—Duties and Liabilities.

Plaintiff and defendant married sisters, and the latter’s wife died, leaving, among other children, an infant five months old. Defendant told plaintiff’s wife that he wished her to take the child, and try how she “could get along with it. ” Prom this she supposed defendant intended to give her the child. Plaintiff kept the child in his family for more than two years, when defendant took it away. Held, that plaintiff could recover the value of its maintenance; there being nothing to show that the defendant intended to give the child away, from which the support might be considered gratuitous.

Appeal from Rockland county court.

Action on contract by Helson Goetschins against John E. Hunt, for the support of an infant child of defendant. Judgment for plaintiff, and defendant appeals.

Argued before Barnard, P. J., and Dyknan and Pratt, JJ.

Irving Brown, for appellant. William McCauley, Jr., for respondent.

The defendant’s wife died in 1885. She left nine children ; the youngest, Mary, about five months old. The plaintiff’s wife was a sister of the deceased. After her funeral, the defendant told the plaintiff’s wife that he would like her “to take the child, and try how I could get along with it.” The plaintiff’s wife supposed from this language that she was to take the child, and bring her up as her own. Hothing was said by the defendant in respect to the ownership of the child. “I said nothing,—whether she was to take it, or I was to retain it, ” is the testimony of the defendant. Under this state of the evidence the plaintiff’s wife has no basis for her assumption that she was to bring up the child as her own, and as one of her own family.

p. 308

The father reclaimed his child after she had been supported for two years and five months in plaintiff’s family. The defendant was liable'for the support of the child for this period. The maintenance was furnished at the father’s request,' and to his own daughter. The fact that the support was furnished in the plaintiff’s family has no importance. The father could board the child in any proper place, and there could be no more fitting place than the family of an aunt, Vhen the infant was of such tender age. The defendant made sundry small payments on the account, and the gross amount of these is uncertain,, varying from between $5 and $10 per month. The jury have finally settled, the question, and no point is made by the appellant in respect to it. It was-wholly immaterial in any view what either party thought of the relation between plaintiff and child. On the undisputed facts there was no basis for a claim that the father intended to give away his child. The judgment should therefore be affirmed, with costs. All concur.