Majority
p. 717Nelson Goetschins, Pl’ff and Resp’t, v. John H. Hunt, Def’t and App’lt. (Supreme Court, General Term, Second Department, Filed May 13, 1889.)
Headnote
Parent and child—Duties and liabilities.The plaintiff is entitled to recover for the board and care of an infant of defendant for two years and six months, furnished by plaintiff, at the request of defendant, under the belief that the child was given to the plaintiff, if the father afterwards claims the child and takes it away from the plaintiff.
Appeal from a judgment on a verdict of a jury in plaintiff’s favor at a trial term of the county court of Rockland county, held October 23, 1888, and the order denying a motion for a new trial.
The action was brought to recover the value of the board, necessaries, etc., furnished to an infant daughter of defendant. The mother of the child died in June, 1885, and shortly afterwards it was taken into the plaintiff’s family, at defendant’s request, and supported by the plaintiff and his wife, who was its maternal aunt, until November, 1887, when it was taken away by the defendant.
The principal defense to the action was, that the care and support of the child was furnished by the plaintiff gratuitously.
The plaintiff’s wife testified as follows: “I saw the defendant when I took away the child, and had conversation with him. The day his wife was buried, he said he would like to have me take the child, and try how I could get along with it. That was the first he ever spoke to me on that subject.” When asked, on cross-examination, whether she had any intention when she took the child to make any charge for its support, she said : “I did not think anything about it, because I took the child as mine;” and afterwards to a similar question, she answered: “Not, as the child was mine.” The plaintiff testified on cross-examination : “I was unwilling he (the defendant) should take the child. I claimed the right to her as my own. At the time the child came to my house, I had no expectation or intention to charge for her support. * * * I supposed at that time the child was mine—given to me.”
Irving Brown, for app’lt; Wm. McCauley, Jr., for resp’t.
The defendant’s wife died in 1885; she left nine children, the youngest, Mary, about five month’s
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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. Nothing 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. The father reclaimed his child after she had been supported for two years and five months in this 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 when 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 five and ten. dollars 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.