28 A.D. 227 | N.Y. App. Div. | 1898
The plaintiff brought this action to recover of the defendant, an infant of the age of seven years, the sum of $651.14 and interest thereon. The right to recover was predicated- upon the complaint which charged that the plaintiff furnished and supplied, at a time specified, this infant, upon her request and implied promise to pay therefor, board and lodging which was of the value claimed; that the board and lodging thus furnished and supplied were “ necessaries,” and of a character suited to the position “in life of the defendant.” At the trial the complaint was dismissed upon the ground that it did not state facts sufficient to const. „üte a cause of action. Judgment was entered to this effect, and from that judgment this appeal is taken.
The trial court was right in dismissing the complaint. The facts therein set out do not constitute a cause of action. A father is bound by law to support his minor children, if he be of ability to do so. (Furman v. Van Sise, 56 N. Y. 439 ; Atchison v. Bruff, 50 Barb. 381.) And if the 2iarent has the ability to and is willing to support his minor children, board and lodging furnished by another without his consent are not necessaries within the meaning
The judgment should be affirmed, with costs.
Van Brunt, P. J., Patterson, O’Brien and Ingraham, JJ., concurred.
Judgment affirmed, with costs.