Bancroft v. Court of Special Sessions

278 A.D. 141, 103 N.Y.S.2d 779, 1951 N.Y. App. Div. LEXIS 3761

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 10, 1951
• Status: Published

Opinions

Per Curiam.

The application was for an order in the nature of prohibition restraining the Court of Special Sessions and the Justices thereof from prosecuting a filiation proceeding instituted against the petitioner on the complaint of the mother of a child born out of wedlock. The department of public welfare in the city of New York, represented by the corporation counsel, has, in order to expedite the ultimate determination, withdrawn its contention that prohibition was not a proper remedy, under the circumstances of this case, and has consented that this court dispose of the application on its merits.

On May 13, 1948, an agreement was made pursuant to section 121 of the Domestic Relations Law, under the terms of which the petitioner was to pay the mother, Dorris P. Furst, the sum of $1,500 in full settlement of any claims against him in connection with the support of the child born out of wedlock. That agreement was approved by the County Judge of Chautauqua County on May 21,1948, after a copy thereof was mailed to the Welfare Commissioner of Chautauqua County, who consented to the compromise, and after the mother personally appeared in court and also requested approval of the agreement. The order of the County Court contained a finding that “ adequate provision for the support and education of said child is fully secured by the said agreement of compromise ”. Briefly, it provided that $1,500 be deposited in a lump sum with a designated attorney who was to pay the mother $200 on the date of approval of the agreement and $25 per week thereafter until the child was born; that out of this sum of $1,500 hospital and doctors’ bills were to be paid and the balance of the money remaining after the child was born was to be turned over to the mother. There is now a balance of some $580 left for the future support, maintenance and education of the child.

Subdivision 3 of section 121 of the Domestic Relations Law provides: ‘1 The performance of the agreement or compromise, when so approved [by the court having jurisdiction], shall bar other remedies of the mother or child for the support and education of the child.” The commissioner of welfare of the city of New York where the mother now resides with her child, deeming the child likely to become a public charge, brought a filiation proceeding here to determine the paternity of the child and to obtain an appropriate order for the child’s maintenance, support and education. The putative father contends that such a proceeding is barred by the above provision of subdivision 3 of section 121 of the Domestic Relations Law.

We hold that while the section in question bars other remedies “ of the mother or child for the support and education of the child ”, it does not bar an appropriate proceeding by the commissioner of welfare having jurisdiction, where, notwithstanding the provisions of the compromise, the complaint alleges that the child, as here, is likely to become a public charge.

There is not now before us any question relating to the setting aside of the order of approval of the County Court of Chautauqua County on the basis of alleged fraud and misrepresentation.

The order should be affirmed, with $20 costs and disbursements to the respondents.