In re the Estate of Weill

34 Misc. 2d 227, 226 N.Y.S.2d 668, 1962 N.Y. Misc. LEXIS 3577

Opinion

John D. Bennett, S.

In this proceeding to compromise an action for wrongful death and for direction as to distribution, a prior decision dated March 29,1962, directed that a citation issue to the father of the deceased infant in order to afford bim an opportunity to be heard on the allegation contained in the petition that he has no interest in the proceeds of the settlement under section 133 (subd. 4, par. [c]) of the Decedent Estate Law.

In the present application for a reconsideration of the prior decision, the petitioner cites two cases and subdivision 2 of section 133 of the Decedent Estate Law as authority for the proposition that it is the ‘1 duty of the parent to seek out his child and to help support the child ’ ’.

Neither of the two cited cases nor subdivision 2 of section 133, however, have any bearing on the precise question of whether a parent is entitled to notice and an opportunity to be heard on the issues of abandonment or failure to support. In each of the cited cases, Matter of Pridell (206 Misc. 316) and Matter of Musczak (196 Misc. 364), the father was cited and appeared as a respondent in the proceeding. In the Pridell case the father’s testimony was taken, and in the Muscsak case a special guardian was appointed to protect the incompetent father’s interest.

This court cannot, therefore, adjudicate the issues of abandonment or failure to support without the father being made a party. The application for reconsideration is granted, and upon such reconsideration the court adheres to its original decision.