"If a husband breach his duty in this regard, and his wife, entitled to such support, involuntarily supply the same out of her separate means, she may, under the statutes of this state, upon due demand, or when such demand be futile, sue and recover of him in an action at law reimbursement for the amount so expended for her necessary support." There is quoted from Klebes, Commissioner of Public Welfare, v. Condon, 22 N.Y.S.2d 86, as follows: "The purpose of statute providing that the father of a recipient of public relief shall, if of sufficient ability, be responsible for the support of such person is to permit the maintenance of an action where it is found that the public has supported an indigent person who during that period should have been supported by a relative of sufficient ability to have done so. Public Welfare Law, Section 125."
Assuming petitioner was "likely to become a public charge" at the time the petition was filed or the order herein made, the record is barren of proof that appellant is of sufficient means or ability to contribute to her mother's support. (See Hodson v. Stapleton, 248 App. Div. 524, 525, 526; Klebes v. Condon, 260 App. Div. 238, 239.) It is urged that as appellant and her husband, as tenants by the entirety, own a house, the husband should account to appellant for one half of the reasonable rental value of the house. But a tenant in common or a tenant by the entirety is not liable to his content for use and occupancy, except where one tenant occupies the premises to the exclusion of the other.
Assuming, however, that she was liable to become in need thereof and likely to become a public charge at the time the petition was filed or the order herein made, the record is barren of proof that appellant is of "sufficient ability" to contribute to her mother's support. (See Hodson v. Stapleton, 248 App. Div. 524, 525, 526; Klebes v. Condon, 260 App. Div. 238, 239.) It is urged that as appellant and her husband, as tenants by the entirety, own a house, the husband should account to appellant for one half of the reasonable rental value of the house. But a tenant in common or a tenant by the entirety is not liable to his cotenant for use and occupancy, except where one tenant occupies the premises to the exclusion of the other.
This provision, as discussed under section 104, has been held to mean "of sufficient ability during the period when assistance was being provided to the recipient relative." (Hodson v Stapleton, 248 App. Div. 524; Klebes v Condon, 260 App. Div. 238.) Section 104, next to be discussed, further limits the liability of an RR.
The legislative purpose was to transmute the moral obligation of the relatives named in the statute into legal liability and thus "the protection of the public purse." ( Anonymous v. Anonymous, 176 Misc. 103, 105; Matter of Rickey, 126 N.Y.S.2d 261; see Klebes v. Condon, 260 App. Div. 238; Fuller v. Galeota, 271 App. Div. 155, 159.) Strict construction of the statute (because in derogation of the common law) does not mandate its distortion or the frustration of the legislative aim.
This court feels that these resources should be exhausted before attempting to collect from a grandparent who never had any direct connection with his grandchild, if he ever knew of the grandchild's existence. Poor case work and failure to follow up legal responsibility as well as the failure to prove "sufficient ability" on the part of the deceased during the period that support was given, forces this court to a conclusion that this claim should be disallowed and dismissed upon the authority of Matter of Morrissey ( 183 Misc. 530); Matter of Moore ( 277 A.D. 471); Matter of Tarantino ( 183 Misc. 288); Matter of Diele ( 187 Misc. 196), and Klebes v. Condon ( 260 A.D. 238). Accordingly, the claim of the Monroe County Department of Public Welfare for the support of the grandchild of Frank A. Hawes in the amount of $2,476.
By statute a grandparent of sufficient means may be held liable for the support of a grandchild where the parents of the child are unable to adequately provide for it. ( Matter of Calhoun v. Calhoun, 256 A.D. 672; Hodson v. Stapleton, 248 A.D. 524; Klebes v. Condon, 260 A.D. 238; Public Welfare Law, §§ 125, 128, now Social Welfare Law, §§ 101, 104.) The parties here, recognizing that the decedent was possessed of sufficient means, have acknowledged the validity of the claim asserted by the Commissioner of Welfare and the liability of the estate for its payment.