Opinion
May 5, 1943.
Present — Crosby, P.J., Cunningham, Taylor, Dowling and McCurn, JJ.
Order affirmed, without costs of this appeal to either party. Memorandum: At the outset of this proceeding to compel the father to support his inpecunious adult son from the date of his confinement in the Rochester State Hospital as an insane person, the father was "deemed to be of sufficient ability, unless the contrary shall affirmatively appear to the satisfaction of the court or a judge thereof" to support said son. (Code Crim. Pro. § 916.) The court below disallowed the claim for support furnished by the hospital from January 7, 1937, to May 11, 1942, on the ground, in substance, that the father was not liable since no order had been made by a court determining the father's liability and fixing the amount thereof, citing as authority for such holding Matter of Willis ( 94 Misc. 29, affd. 175 App. Div. 933). In view of the fact that the hospital, from 1937 to the commencement of this proceeding, regularly billed the father for the son's support at the rate of thirty dollars per month as fixed by the State Commissioner of Mental Hygiene, we do not regard the Willis case as controlling here. While the appellant started the proceeding with the presumption that the father was able to pay the thirty dollars per month, the father would not be liable if he could show that he was not of "sufficient ability" to support his said son. (Code Crim. Pro. § 914.) We think that the father offered evidence of his inability to pay for his son's support from the date of his commitment to the hospital in 1937 to May 11, 1942, sufficient to overcome the statutory presumption of his ability to do so. Considering the father's age, fifty-seven, and the small amount of his capital, we think it would be most inequitable to compel him to pay the claim of the hospital for support rendered prior to May 11, 1942. ( Matter of Willis, 94 Misc. 29, 35; Copeland v. Weber, 175 Misc. 403; Matter of Hessney, 177 Misc. 781, 786, 787; Matter of Sagendorf, 257 App. Div. 1042.)
The County Judge held that no award in this proceeding could be made for past maintenance of the incompetent because a determination by the court, that the father was liable, is a prerequisite to liability. This ruling was erroneous. (Code Crim Pro. § 914 et seq; Mental Hygiene Law, §§ 40, 79, 80, the two latter formerly §§ 76 and 77. See, also, Matter of Fox, 250 App. Div. 31, affd. 275 N.Y. 604.) It seems to me that the record proof warrants a finding that the father, at all times since January 18, 1937, has been of sufficient financial ability to pay at least twenty dollars a month for the support of his incompetent son. I am also of the opinion that the father is presently able to pay for future support at the rate fixed by the State Commissioner. I, therefore, dissent and vote for modification to the extent indicated. (The order disallows a claim of the Rochester State Hospital against Thomas Byrne, but directs said Thomas Byrne to contribute to the hospital for the support of an incompetent son.)