Citation Numbers: 170 Misc. 719
Judges: Davis
Filed Date: 2/6/1939
Status: Precedential
Modified Date: 1/12/2023
The action is based on an order made by the Children’s Court, Westchester county, on November 23, 1936, directing defendant to pay the sum of five dollars per week for the support of his minor child. That defendant is in arrears on the payments is admitted, though the amount of the arrears is in dispute. Such a dispute could be determined under rule 113 of the Rules of Civil Practice by an assessment of damages.
The more serious question, however, is whether such an action will he at all. Section 6 of the Children’s Court Act provides that a violation of such an order shall be punishable either as a misdemeanor or as a contempt of court. Provision is also made for the maintenance of a civil action by certain public officials to recover the amounts due and unpaid. (Children’s Court Act, § 6, subd, 2, clause (d); Code Crim. Proc. § 920.) There is no authority in the statute for an action brought by a private individual, even though she be the mother of the child. In my opinion such authority cannot be implied. There is no difference in principle between this action and an action to recover upon a Supreme Court order awarding temporary alimony. Such an order is not actionable, and may be enforced only in the manner expressly provided by the statute which creates the remedy. (Doncourt v. Doncourt, 245 App. Div. 91; affd., 275 N. Y. 470.) The same reasoning applies to an order for the payment of money granted in the Children’s Court. "If the Supreme Court has no power to enforce its own order by action it can scarcely possess such power with respect to an order issued by an inferior court. I conclude that the action will not lie. If the remedies now existing are inadequate the creation of others rests with the Legislature.
The motion is denied. Submit order on notice.