Straus v. Kurras

254 A.D. 682, 3 N.Y.S.2d 235, 1938 N.Y. App. Div. LEXIS 7118

Opinion

Order, in so far as it strikes out the first and fourth defenses contained in the answer, affirmed, with ten dollars costs and disbursements. No opinion. If so advised, defendant may serve amended answer, setting up the defense of fraud, within ten days from the entry of the order hereon. Hagarty, Davis, Johnston and Taylor, JJ., concur; Lazansky, P. J., concurs in the striking out of the fourth defense, which sets up lack of consideration, but dissents from the striking out of the first defense, with the following memorandum: The contract with the father based upon an express promise to support his infant child is a continuing contract and liability to pay accrues at the end of the agreed term. Where an abandoned infant child receives support, one who furnishes necessaries for such support has a cause of action against the father, as the law implies a promise on the part of the father to pay for the support. The implication necessarily arises immediately upon the rendition of each service to the child. In such case, there is no continuing obligation.