49 N.Y.S. 372 | N.Y. Sup. Ct. | 1897
This action is brought to recover the sum o_ $278.60, with interest from January 1, 1897. The complaint alleges:
I. The incorporation of the plaintiff as an institution for the care, treatment and maintenance of incompetent persons.
II. The legal commitment of William H. Stuart to the Flat-bush Insane Asylum, June 3, 1893; th.e transfer of that asylum to the state October 1, 1895; its change of name at that time to its present name as plaintiff above entitled; and the continuance of said Stuart as an inmate from October 1, 1895, to June 1, 1897, a period of seventy-four and two:sevenths weeks.
IH. That the said patient, William H. Stuart, is without means, has no committee, and is the defendant’s son; and that the defendant is the owner of certain valuable real estate in the city of Brooklyn, and is otherwise a man of large means and of sufficient ability to properly care for and maintain his son.
IV. That the state commission in lunacy fixed the rate for the care, medical treatment and maintenance of the said patient from October 1,1895, to June 1,1897, at $3.75 per week, amounting to $278.60 in the aggregate; and,
The .ground of demurrer is that the complaint does not state 'facts sufficient to constitute a cause of action; and the' question 'presented is whether an action at law may be maintained under ¡the "provisions of the Insanity Law (Chap. 545, Laws of 1896), ;to recover from the father of an adult insane son committed prior 'to the passage of that act, the rate fixed for the latter’s maintenance in the institution as a liquidated debt. If such an action "will lie, it must be by force of some statute, and none is cited by the plaintiff’s counsel expressly conferring such right of action.
It. will be observed that the complaint contains no allegations do dhe effect that the patient is a minor; or that the '■defendant was in any way connected with or cognizant of the ¡proceedings by virtue of which he was originally committed :as an insane person; or that he knew of- such commitment.; er that he had refused or neglected to care for .-and support his son; or that his liability to support him in a ■public institution has been in any way fixed by judicial order. The .nature of the proceedings resulting in his commitment is not -disclosed. The complaint rests solely upon the allegations that "the son has been duly committed as an insane person, and that "the defendant, although of sufficient means, refuses to pay the board bill as fixed by the commission. If, therefore, the action» •nan be maintained, it follows that the relative may be made liable without an opportunity to contest the question of the alleged in.■sanity, and without any default in . the discharge of the duty primarily resting upon him to care for and support his son outside -of the asylum.
My attention has not been directed to any statute- expressly conferring this right of action; but the plaintiff relies upon the general, provisions of chapter 446 of the Laws of 1874, and its sub■stitute, the Insanity Law, section 66, by which it is made the duty -of a. father to cause his insane son to be properly and suitably •cared for and maintained, and upon the provision of chapter 460 of the Laws of 1897, to the effect that actions at law for the support of inmates of state hospitals shall be brought in the- name -of the hospital against any relative who may be liable therefor Tinder the provisions of the Insanity Law. The law of 1874 was repealed by the later enactment. By the act of 1874 (§ 12,
Section 68 of the Insanity Law relates to dangerously insane persons. The father is therein required to provide a suitable place for his lunatic son’s confinement, and upon his refusal or neglect to do so,, legal proceedings may be instituted, and a commitment ordered upon proper proof.
It seems to me that the scheme of the law is to require primarily that the support of the indigent insane shall devolve upon the relative; that only upon failure or réfusal to discharge that duty is'care assumed by the state; and that before any relative can be legally charged with liability for the board of the patient in the state institution, an order must be made establishing the remiss
My attention has been called to the case -of' Goodale v. Lawrence, 88 N. Y. 513. That was an action brought to recover for the support of an insane wife, and the verdict for the plaintiff was affirmed upon the common-law,obligation of the husband to support his wife. The superintendent of the poor was permitted to recover in the same way and on the same- ground that a private citizen would be permitted to recover who had furnished her the' Support which the husband had refused. • The liability was not based on the obligation to support, but on the failure to fulfill it, and the refusal of the husband to support his wife, was tire essential allegation. The case would be more in point were William H. Stuart a minor. But the liability to support an adult son is statutory, and the statute creating it must furnish in express terms its measure and extent. If it be .claimed that when the statute creates the general liability, the relation of the parties becomes the same as at common law, and that accordingly any- one may recover for necessaries, the fact still remains 'that there must be proof of neglect on the part of the relative to supply the necessaries in order to justify a third person in supplying them at the . expense of the delinquent. . _
The demurrer is sustained, and judgment directed for the defendant, With costs. •. . ,
Demurrer sustained, and judgment for defendant, with costs.