"Ketcham" v. "Ketcham"

Similarly, Kernochan, P. J.,

dissented on the ground that the evidence did not show that the complainant had ever “ regained his settlement ” in the city of New York so as to entitle him to the benefit of the then Poor Law of this State (Poor Law, § 40), saying: “ This legislation was enacted in so far as support of parents is concerned to protect the city of New York from supporting one of its poor if a child of sufficient means can be found to lift the burden from the shoulders of the public to its own, where indeed it rightfully belongs. It was not intended to protect any other town or county in another State should they be liable for the poor person’s support * * (People v. Spear, supra, 143.)

The superseding statute now in force and the basis of the instant proceeding (Dom. Rel. Ct. Act, § 101, subd. 4) is consistent in applying the principle of indemnifying the city of New York, invoked in both the majority and dissenting opinions in People v. Spear (supra). Because the real party in interest is the city of New York, said subdivision 4 provides for “ poor relative ” proceedings only in behalf of residents of the city of New York, i. e., persons who would be eligible for public aid in, and so likely to become public charges of, the city of New York.

Thus, subdivision 4 of section 101 of the Domestic Relations Court Act does contain a residential jurisdiction requirement; it is immaterial that the words “ residential jurisdiction ” do not appear as an introductory title, as in section 103 of the act. (McKinney’s Consolidated Laws of New York, Annotated, Book I, § 94, p. 160.) For the clear objective of the statute is the safeguarding of the public purse of the city of New York. In view of such objective it is patently immaterial whether the persons legally chargeable with the duty of indemnifying the city of New York against the cost of public charge maintenance of a “ poor relative ” petitioner are residents or non-residents of the city of New York. It is enough that they can be brought before the court, on due notice, like any resident of the city of New York, and have their day in court.

A different kind of “ residential jurisdiction ” is provided for in section 103 of the said act, dealing with husband and father respondents, and contemplating the broader and more numerous types of support duties of those two classes of persons chargeable. As already stated, subdivision (a) of that section confers jurisdiction in casos where only one party (respondent) is a resident of the city of New York, and subdivisions (b) and (c), conversely, cover cases where the wife or child resides in the city of New York at the time of the filing of the petition but the respondent-husband or father is a non-resident. Thus, said section 103 extends, rather than restricts, the residential jurisdiction of the court. Moreover, subdivision 4 of section 101 of the Domestic Relations Court Act, as well as each of the subdivisions of section 103 thereof, specify that only one side (petitioner or respondent) need be a resident. In said section 103 the specifications are fuller; but the intent of said subdivision 4 is also clear to the effect that the only residence requirement therein is one imposed on the petitioner and that there is no such requirement in respect of any respondent.

For the foregoing reasons I hold that this court has jurisdiction to enter against each of the respondents who has been served with summons within the city of New York an order requiring him or her severally Recontribute such sum “ as may be just and appropriate in view of the circumstances of the case and their respective means.” (Dom. Rel. Ct. Act, § 101, subd. 4.)

The fact that only some, and not all, of petitioner’s children are now before the court does not reheve from liability the respondents over whom jurisdiction had been acquired. The liability under the statute is expressly stated to be several; moreover, it is a general principle that lack of jurisdiction over one defendant does not defeat jurisdiction over a severally hable codefendant. (Denver & R. G. W. R. Co v. Terte, 284 U. S. 284.) A court may assume jurisdiction over an action against a non-resident over whose person it has acquired jurisdiction, although it has not acquired jurisdiction over the person of non-residents jointly hable with him. (Bates v. Reynolds, 20 N. Y. Super. Ct. 685.)

(There are here omitted the remaining portions of the opinion, dealing with the particular facts of the bases for support orders against the three respondents over whom the court has acquired jurisdiction.)

I direct that the following named respondents shall pay into this court the following sums of money, semi-monthly, on the first and fifteenth days of the month, beginning July 1, 1941: Respondent No. 1 (Adelaide “ Ketcham ”), $5; respondent No. 2 , (William B. “Ketcham,” Jr.), $3.50; respondent No 4 (Gerard “ Ketcham ”), $2; for the support of petitioner until the further order of this court.

Petitioner is referred to the old age assistance division of the department of welfare of the city of New York for sucb, if any, supplemental assistance as his condition may justify from time to time.

Notice shall be given to the parties and attorneys pursuant to the subjoined direction.