Haskell v. Haskell , 202 N.Y.S. 881 ( 1924 )

Dowling, J.:

I dissented from the prior action of this court reversing a judgment in favor of the present plaintiff in an action brought by her to recover moneys alleged to have been advanced by her for necessaries for the infant son of the parties. This court reversed the judgment and dismissed the complaint upon an opinion by Mr. Justice Greenbaum (201 App. Div. 414), wherein the refusal to allow the plaintiff to recover was placed directly upon the conclusion, stated to be inevitable from the evidence, that plaintiff harbored the boy although she Ipiew he had deliberately disobeyed the father by refusing to attend school, and that it had been agreed that the father was to have the sole charge of the boy’s education and maintenance. Mr. Justice Greenbaum there stated the question to be whether under the circumstances the defendant was obliged to pay the plaintiff anything for the support of their infant child. He reached the conclusion that the action of the present plaintiff in harboring the boy when she knew he had refused to attend the school selected by the father was a violation of the terms of the separation agreement between the parties, and, therefore, the defendant was held not to be indebted to the plaintiff, and the complaint was dismissed. The judgment of the court to that effect, embracing findings of the facts before referred to, was affirmed by the Court of Appeals without opinion (236 N. Y. 635).

I feel, therefore, bound by the prior judgment of this court and of the Court of Appeals and, despite my prior dissent, am constrained to vote to reverse the determination here appealed from and the judgment of the Municipal Court, and to dismiss the complaint.

Clarke, P. J., and McAvor, J., vote for reversal and to dismiss the complaint on the authority of Haskell v. Haskell (201 App. Div. 414); Smith and Merrell, JJ., dissent.