Wysocki v. Prior

Appellate Division of the Supreme Court of New York

Wysocki v. Prior

24 A.D.2d 732, 263 N.Y.S.2d 342, 1965 N.Y. App. Div. LEXIS 3380

CourtAppellate Division of the Supreme Court of the State of New York

DecidedSeptember 23, 1965

StatusPublished

Cited by1 cases

This text of 24 A.D.2d 732 (Wysocki v. Prior) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Wysocki v. Prior, 24 A.D.2d 732, 263 N.Y.S.2d 342, 1965 N.Y. App. Div. LEXIS 3380 (N.Y. Ct. App. 1965).

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Opinion

Order unanimously affirmed, without costs of this appeal to any party. Memorandum: Defendant, Wysocki, as administrator, moved to dismiss the complaint upon the ground it failed to state a cause of action as to the estate. (CPLR 3211, subd. [a], par. 7.) The issue presented centers upon whether or not the infant was emancipated at the time of the accident. The amended complaint is silent on the subject and the several submitted affidavits are equally unrevealing except for an allegation on information and belief in an affidavit of plaintiff’s attorney stating the age of the child to be 10 years. In deciding the appeal, we accept the fact (apparently assumed by the parties and Special Term) that immediately before the accident the infant was unemaneipated and had a living father and mother. We find no merit to appellant’s contention that the infant was automatically emancipated by the death of his mother either simultaneously with the occurrence of his injuries or shortly thereafter. Emancipation is concerned with the extinguishment of parental rights and duties as well as the removal of the disabilities of infancy. (15 N. Y. Jur., Domestic Relations, § 431.) Here, the evidence on the issue is not in conflict and only one inference may be drawn therefrom — that the infant had a living father, who states in an affidavit that he retained the infant’s present attorney to prosecute this action. (Appeal from order of Erie Special Term dismissing the complaint for failure to state a cause of action.) Present — Williams, P. J., Bastow, Goldman, Henry and Del Vecehio, JJ.

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Order unanimously affirmed, without costs of this appeal to any party. Memorandum: Defendant, Wysocki, as administrator, moved to dismiss the complaint upon the ground it failed to state a cause of action as to the estate. (CPLR 3211, subd. [a], par. 7.) The issue presented centers upon whether or not the infant was emancipated at the time of the accident. The amended complaint is silent on the subject and the several submitted affidavits are equally unrevealing except for an allegation on information and belief in an affidavit of plaintiff’s attorney stating the age of the child to be 10 years. In deciding the appeal, we accept the fact (apparently assumed by the parties and Special Term) that immediately before the accident the infant was unemaneipated and had a living father and mother. We find no merit to appellant’s contention that the infant was automatically emancipated by the death of his mother either simultaneously with the occurrence of his injuries or shortly thereafter. Emancipation is concerned with the extinguishment of parental rights and duties as well as the removal of the disabilities of infancy. (15 N. Y. Jur., Domestic Relations, § 431.) Here, the evidence on the issue is not in conflict and only one inference may be drawn therefrom — that the infant had a living father, who states in an affidavit that he retained the infant’s present attorney to prosecute this action. (Appeal from order of Erie Special Term dismissing the complaint for failure to state a cause of action.) Present — Williams, P. J., Bastow, Goldman, Henry and Del Vecehio, JJ.

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Bluebook (online)

24 A.D.2d 732, 263 N.Y.S.2d 342, 1965 N.Y. App. Div. LEXIS 3380, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wysocki-v-prior-nyappdiv-1965.

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