5 Lans. 337 | N.Y. Sup. Ct. | 1871
By the Court
The only question involved in this case is, whether a mother, where the father is dead, can maintain an action for the services of her minor child. In Gray v. Durland (50 Barb., 100), it was held that a mother, in case of a father’s death, has the same right to the services of a minor child that the father would have if living, and, hence, that she might maintain an action for the seduction of her minor daughter. It is true that, in the prevailing opinion in that case, some stress is laid upon the fact that the courts have leaned very decidedly in favor of sustaining the action for seduction, which originally was founded in the actual loss of service; but the decision is put upon the broad
In the ease cited, the authorities bearing upon the question are fully reviewed and commented upon; and, as our attention has not been directed to any additional eases which in any way vary the rule, it is not important to re-examine them. Certainly not, when none have been cited of a later date which in any way affect or overrule the authority of the case referred to, which, until reversed by a higher tribunal, or at least questioned by a court of co-ordinate jurisdiction, must be regarded as decisive. If we adhere to the principle there enunciated, there is no difficulty in determining the question now raised.
The principle which gives to the surviving parent, who takes care of, nurtures and provides for the minor, a control over its actions, and a right to the services of the minor, is founded in good sense and sound judgment, and, even if in conflict with the common-law rule and the decisions of the English courts, as well as the courts of some of the States, conforms to the spirit of the age and the progress of events, which of late have recognized more fully than at an earlier date the rights of the wife and the mother by legislative enactment. (See S. L. of 1862, chap. 172, § 6.)
The fact that the minor contributed to the support of the mother does not, in my opinion, alter the rule or deprive the mother of the right which the law confers upon her. And even although the mother might forego the right to recover for the services of the minor, by consenting to a contract between the infant and another, on a promise to pay the infant, or by allowing the infant, without objection, to contract for and receive payment for services on his or her own account, yet, when no such consent is given, or no such contract is acquiesced in, the mother is not debarred from maintaining an action for the services rendered, and a recovery by her would bar any action by the minor for the same cause
Judgment reversed.
