Opinion
May 17, 1943.
This is a proceeding under section 101 of the Social Welfare Law, formerly section 125 of the Public Welfare Law, which, so far as material, provides: "The * * * child * * * of a recipient of public assistance or care or of a person liable to become in need thereof shall, if of sufficient ability, be responsible for the support of such person." The petition was directed against appellant, a daughter, and the other children of petitioner. At a prior hearing the other children, with the approval of the court, agreed to contribute to the support of their mother; and at a subsequent hearing the court took proof and directed that appellant pay two dollars weekly on account of her mother's support and maintenance. Petitioner was not a recipient of public assistance at the time the proceeding was instituted. 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. ( Limberg v. Limberg, 256 App. Div. 721, affd. 281 N.Y. 821; Minion v. Warner, 185 App. Div. 246, 248; Neubeck v. Neubeck, 94 N.J. Eq. 167 .) In the instant case the house is occupied by appellant, her husband and their two infant children. Order of the Domestic Relations Court of the City of New York (Family Court), County of Kings, reversed on the law and the facts, without costs, and petition as against appellant dismissed, without costs. Hagarty, Johnston, Adel, Taylor and Lewis, JJ., concur. [See post, p. 802.]