Weinberger v. Van Hessen

O’Malley, J. The plaintiff, an infant under fourteen years of age, seeks through his mother, as guardian ad litem, a decree in equity determining his rights under an alleged contract set forth in the complaint. By the agreement as alleged the defendant, at a time when the infant plaintiff resided in Holland, and was being supported and educated by one Dr. Weinberg, a brother of the infant’s mother, agreed with the infant's mother that if she would bring the infant to this country, the defendant would support him for his natural life, provided the defendant was permitted to direct his education and control his religious and moral up-bringing. In compliance with this agreement, the infant’s mother brought him to this country. Thereafter he received instructions from the defendant as to his religious training and education and the defendant was given sole control of his mental development. The defendant contributed to the support, education and maintenance of the infant at the rate of $6,000 a year, but since September 15, 1931, has failed and refused to perform the terms of the agreement. The infant and his mother have duly performed all the terms and conditions of said agreement on their part and are ready, able and willing to perform the same. It is alleged that there exists no adequate remedy at law and judgment is requested that the court fix and determine the reasonable amount necessary for infant’s maintenance and support, with directions that such sum be payable to him for his natural life in such installments as may be fair and reasonable, together [16] with a judgment for such moneys as have already accrued under the agreement. . Reversal of the order sustaining the complaint is sought upon the ground that the plaintiff has shown no right to relief either at law or in equity. We are of opinion that a good cause of action is stated. The contract here sued upon relates not only to the support of an infant, but to his religious and moral education and training; in effect, his nurture. Infants and their personal and property rights have always been the particular subject of the Courts of Chancery. (14 R. C. L. 267, Infants, § 42; 14 A. L. R. 308 et seq.; The Laws of England, Halsbury, vol. 17, Infants and Children, § 4, pp. 145 et seq.) The Supreme Court has succeeded to the jurisdiction of the Court of Chancery over the person and estate of infants. (Bernstein v. Bernstein, 188 App. Div. 276, 278.) Both the person and property of an infant, the particular ward of the court, are here involved. As the reasonableness of payments, not only for the past, but for the future, and the methods of such payment are called into question, equity is properly invoked. We are of opinion, therefore, that the cause of action here pleaded is cognizable in equity and that the plaintiff should not be relegated to an action at law. (Winne v. Winne, 166 N. Y. 263; Healy v. Healy, Id. 624.) The order should be affirmed, with ten dollars costs and disbursements, with leave to the defendant to answer within twenty days from service of order upon payment of said costs and ten dollars costs of motion at Special Term. Finch, P. J., McAvoy and Martin, JJ., concur; Townley, J., dissents and votes to reverse and grant the motion.