249 A.D. 561 | N.Y. App. Div. | 1937
An action for separation between the parties was pending in the Supreme Court when petitioner’s application for an increased allowance to provide for the support of the children was granted in the Domestic Relations Court. In such case the only basis for the exercise of jurisdiction by that court is a showing that the minor children, in whose behalf the application had been made, were likely to become public charges. (Matter of Costa v. Costa, 247 App. Div. 192; Dom. Rel. Ct. Act, § 137.) The undisputed testimony here is that the rent and all lighting bills of the apartment in which the children lived with the mother, were being paid by the father, and there was no claim that the latter was not making adequate provision for their food and clothing. As the record is barren of any proof that the children were likely to become public charges, the Family Court, while the separation suit was pending and undetermined, was clearly without power to make the order increasing the weekly allowance which had theretofore been made solely for the benefit of the petitioner.
The order should be reversed and the petition of respondent for an increased allowance should be dismissed.
Present — Martin, P. J., O’Malley, Townley, Dore and Cohn, JJ.
Order unanimously reversed and the petition of the respondent for an increased allowance dismissed.