Langerman v. Langerman

278 A.D. 933, 106 N.Y.S.2d 607, 1951 N.Y. App. Div. LEXIS 5272

Opinion

Order affirmed, without costs. Ho opinion. Present — Dore, J. P., Cohn, Callahan, Yan Yoorhis and Shientag, JJ.; Yan Yoorhis, J., concurs to affirm in the following memo: Regardless of any other question, this action is not maintainable in the right of the infant plaintiffs by their guardian ad litem, at least in the absence of a demand upon the mother, having their custody, and a refusal upon her part to institute the action for their benefit (Kendall v. Kendall, 200 App. Div. 702; Yates v. Yates, 183 Misc. 934). Order dismissing the complaint affirmed but without prejudice to the prosecution of whatever right of action, if any, may inhere in the mother. Dore, J. P., and Shientag, J., dissent and vote to reverse and deny the motion to dismiss the complaint.