Urbanowitz v. Mielke

Connecticut Superior Court

Urbanowitz v. Mielke

8 Conn. Super. Ct. 58, 8 Conn. Supp. 58

CourtConnecticut Superior Court

DecidedFebruary 29, 1940

DocketFile 57900

StatusPublished

This text of 8 Conn. Super. Ct. 58 (Urbanowitz v. Mielke) is published on Counsel Stack Legal Research, covering Connecticut Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Urbanowitz v. Mielke, 8 Conn. Super. Ct. 58, 8 Conn. Supp. 58 (Colo. Ct. App. 1940).

Pincite

Opinion

SIMPSON, J.

This is an action brought by the plaintiff, a ■minor, by the mother and next friend, to recover upon a con' tract alleged to have been made October 5, 1928, between the plaintiff’s mother and the defendant (who it is said to have acknowledged that he was the father of the plaintiff) wherein and whereby the defendant agreed that the expense of support' ing the plaintiff should be equally borne by the parties to the ■agreement.

The defendant demurs to the complaint upon four grounds. 'Grounds A and B are purely general and call for no considera' tion by the court. Grounds C and D are to the effect the agreement was an attempt to supersede the bastardy statute and hence void as against public policy, and that it is also void because it is without the consent of the first selectman of the Town of Meriden.

Under our statute with reference to bastardy proceedings, the mother of a child has a valid and lawful cause of action against the child’s father to compel him to assist her in the maintenance of their child. Van Epps vs. Red field, 68 Conn. 39, 47. Assuming there was a valid consideration for the *59 agreement, such undertaking to perform his statutory duty is enforceable, and is not void.

The defendant further claims that the agreement sued upon is void because it is without the consent of the first selectman of the Town of Meriden. Assuming the first selectman had power under the statute to alone consent, the lack of his consent does not render the agreement void. The statute merely provides that no settlement made by the mother and father without the approval of the selectman of the town chargeable with the support of such child “shall relieve the father from liability to such town for such child’s support.” The agreement sued upon does not attempt to relieve the father from his liability to the town, and it cannot be held void for that reason. Such an agreement would not be a bar to any proceedings by the selectmen. State vs. Dougher, 47 Minn. 436, 50 N.W. 475.

The question whether or not there is a consideration for the agreement sued upon, and whether the right party is the plaintiff, are not raised by the demurrer and are not before the court for decision. It may be said, however, that it is a serious question whether the child can sue upon the contract alleged. The case of Rosseau vs. Rouss, 180 N.Y. 116, does not appear to be in point. In that case it was alleged that the defendant promised to establish a trust fund for the child when he became ten years of age. As a third party beneficiary he therefore had a cause of action. In this case the alleged agreement is that the expense in supporting plaintiff shall be borne equally by the mother and father (defendant). Presumably the mother has supported the child until the bringing of this action. The mother might therefore have a right of action to recover by way of reimbursement for half of the expenses but it is difficult to see upon what theory the child can recover for past support which the mother has furnished. That question, however, is left undecided.

The demurrer is overruled.

Free access — add to your briefcase to read the full text and ask questions with AI

SIMPSON, J.

This is an action brought by the plaintiff, a ■minor, by the mother and next friend, to recover upon a con' tract alleged to have been made October 5, 1928, between the plaintiff’s mother and the defendant (who it is said to have acknowledged that he was the father of the plaintiff) wherein and whereby the defendant agreed that the expense of support' ing the plaintiff should be equally borne by the parties to the ■agreement.

The defendant demurs to the complaint upon four grounds. 'Grounds A and B are purely general and call for no considera' tion by the court. Grounds C and D are to the effect the agreement was an attempt to supersede the bastardy statute and hence void as against public policy, and that it is also void because it is without the consent of the first selectman of the Town of Meriden.

Under our statute with reference to bastardy proceedings, the mother of a child has a valid and lawful cause of action against the child’s father to compel him to assist her in the maintenance of their child. Van Epps vs. Red field, 68 Conn. 39, 47. Assuming there was a valid consideration for the *59 agreement, such undertaking to perform his statutory duty is enforceable, and is not void.

The defendant further claims that the agreement sued upon is void because it is without the consent of the first selectman of the Town of Meriden. Assuming the first selectman had power under the statute to alone consent, the lack of his consent does not render the agreement void. The statute merely provides that no settlement made by the mother and father without the approval of the selectman of the town chargeable with the support of such child “shall relieve the father from liability to such town for such child’s support.” The agreement sued upon does not attempt to relieve the father from his liability to the town, and it cannot be held void for that reason. Such an agreement would not be a bar to any proceedings by the selectmen. State vs. Dougher, 47 Minn. 436, 50 N.W. 475.

The question whether or not there is a consideration for the agreement sued upon, and whether the right party is the plaintiff, are not raised by the demurrer and are not before the court for decision. It may be said, however, that it is a serious question whether the child can sue upon the contract alleged. The case of Rosseau vs. Rouss, 180 N.Y. 116, does not appear to be in point. In that case it was alleged that the defendant promised to establish a trust fund for the child when he became ten years of age. As a third party beneficiary he therefore had a cause of action. In this case the alleged agreement is that the expense in supporting plaintiff shall be borne equally by the mother and father (defendant). Presumably the mother has supported the child until the bringing of this action. The mother might therefore have a right of action to recover by way of reimbursement for half of the expenses but it is difficult to see upon what theory the child can recover for past support which the mother has furnished. That question, however, is left undecided.

The demurrer is overruled.

Cite This Page — Counsel Stack

Bluebook (online)

8 Conn. Super. Ct. 58, 8 Conn. Supp. 58, Counsel Stack Legal Research, https://law.counselstack.com/opinion/urbanowitz-v-mielke-connsuperct-1940.

Opinion

Related

Cite This Page — Counsel Stack