17 Misc. 2d 377 | City of New York Municipal Court | 1959
The defendant moves under rule 106 of the Rules of Civil Practice to dismiss the second alleged cause of action.
The plaintiff and the defendant are brothers. It is alleged in the said second count of the complaint that the plaintiff supported his aged and ill mother, who was unable to maintain herself and likely to become a public charge, and that the defendant, although under a legal obligation and although of sufficient financial ability to meet it, failed to contribute anything. The plaintiff seeks reimbursement from the defendant to the extent of the latter’s proportionate share of the moneys which were necessary for the mother’s support.
It is section 101 of the Social Welfare Law which imposes upon children financially able to do so the duty of supporting needy parents. At common law there was a moral duty to furnish such support but apparently no legal responsibility. Thus the cause of action pleaded in the second count is of a quasi-contractual nature and rests upon the provisions of title 6 of article 3 of the Social Welfare Law, that is, section 101 et seq. In this connection, section 914 of the Code of Criminal Procedure and sections 92 and 101 of the New York City Domestic Relations Court Act are also tangentially pertinent. It is significant, however, that title 6 of article 3 of the Social Welfare Law provides for enforcement of its requirements only at the instance of and by public welfare officials. It does not vest the cause of action in any private person.
It seems to me, therefore, that one who has furnished support to a needy relative, as he was both legally and morally obligated to do, cannot claim contribution from another person who bore a like obligation which he failed to meet. Title 6 (art. 3) of
Accordingly, the motion of the defendant is granted and the second alleged cause of action is dismissed.