273 N.Y. 325 | NY | 1937
Plaintiff was formerly the wife of defendant. A son and daughter were the offspring of their marriage, which was dissolved in this State by a decree entered in June, 1920, and custody of the daughter awarded to plaintiff. That judgment ordered that "at all times the defendant shall properly maintain, educate *327 and support the said children, the amount necessary for that purpose being left to the discretion of the defendant." This language is taken verbatim from an agreement between the parties in February, 1920, shortly after the institution of plaintiff's action for divorce.
In September, 1920, plaintiff married Hobart Swanton and, during the succeeding ten years, the daughter lived with them. She assumed the name of her stepfather and he supported her. This action was instituted in November, 1931. The complaint alleges the entry of the decree of June, 1920, quoting its terms in respect to the defendant's obligation to support both children, his failure properly to provide for the daughter's maintenance, pursuant to the decree, and expenditures by plaintiff for such purpose in the sum of $20,000. A verdict for $6,000, which includes only those expenditures during the period of six years prior to the institution of this action, was rendered for plaintiff.
Defendant argues that plaintiff's sole remedy was in the divorce action and not by an independent action at law. He urges that plaintiff must move to modify the decree so as to fix a definite sum, and relies upon People ex rel. Commissioners v.Cullen (
The rule is that an action brought by a divorced wife against her former husband to recover money spent for their child's maintenance is brought for the benefit of the child (Laumeier
v. Laumeier,
The judgments should be reversed and the complaint dismissed, with costs in all courts.
CRANE, Ch. J., LEHMAN, LOUGHRAN, FINCH and RIPPEY, JJ., concur; HUBBS, J., taking no part.
Judgments reversed, etc. *330