Weinberger v. Van Hessen
| Decision Date | 22 November 1932 |
| Citation | 260 N.Y. 294,183 N.E. 429 |
| Parties | WEINBERGER v. VAN HESSEN. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Action by Mitzi Weinberger, guardian ad litem of Leon Weinberger, an infant, against Louis Van Hessen, also known as Louis Cohen. From an order of the Appellate Division, First Department (236 App. Div. 14, 257 N. Y. S. 738), affirming an order of the Special Term denying defendant's motion to dismiss the complaint, the defendant appeals. The Appellate Division certified a question (236 App. Div. 724, 257 N. Y. S. 1040).
Order affirmed, and certified question answered.
The following question was certified: ‘Does the complaint state facts sufficient to constitute a cause of action in equity?’Appeal from Supreme Court, Appellate Division, First department.
Jacob J. Alexander and Emanuel Schwach, both of New York City, for appellant.
Abraham Reiss and Harold Greenberg, both of New York City, for respondent.
The complaint alleged, in substance, the following facts: On September 3, 1929, the infant plaintiff was being supported in Holland by an uncle, in whose custody and care he then was. On that day the defendant entered into an agreement with the plaintiff's mother to the effect that, if she would go to Holland, induce her brother to surrender the custody of the infant, bring the infant to New York, and permit the defendant thereafter during the natural life of the infant to direct his education and control his religious and moral upbringing,the defendant would, during his natural life, support him and direct his moral education and training-the defendant at all times to have access to the infant so that he might enjoy his companionship and society. The mother did go to Holland and induced her brother to surrender the care, custody, and control of the infant, thereby depriving him of the support and maintenance which he was receiving from his uncle. She brought the child to New York in November, 1929, and placed him in the care of the defendant. Thereafter the defendant attended to the religious training and education of the child, and had his companionship and society, contributing to his care, maintenance, and education $6,000 per annum. Since September 15, 1931, defendant has failed and refused to perform the terms of the agreement. The infant plaintiff and his mother have performed all the terms of the agreement on their part, and are ready, able, and willing to continue performance. It is then alleged that the plaintiff has no adequate remedy at law.
Defendant moved to dismiss the complaint for insufficiency. The motion was denied, and the order of denial was affirmed by a divided court in the Appellate Division, which has certified to this court the following question: ‘Does the complaint state facts sufficient to constitute a cause of action in equity?’
The difference of opinion in the Appellate Division was over the question of mutuality of remedy. There was no promise, it is said, by the child or his mother, under which defendant could have an enforceable right to direct the child's education and to control his religious and moral upbringing. Whether there was a promise or not may be debatable. Wood v. Lucy, Lady Duff-Gordon, 222 N. Y. 88, 118 N. E. 214. But, even though there was none, the contract has been performed up to the present; and the child and his guardian have assumed the duty of performance by invoking the aid of equity. Their continued performance may be made a condition of the decree, if a decree be entered. Epstein v. Gluckin, 233 N. Y. 490, 135 N. E. 861; Codding v. Wamsley, 1 Hun, 585, affirmed 60 N. Y. 644. The contract does not differ essentially from those considered in Winne v. Winne, 166 N. Y. 263, 59 N. E. 832,82 Am. St. Rep. 647;Healy v. Healy, 166 N. Y. 624, 60 N. E. 1112; and Ketcham v. Wilbur, 241 N. Y. 516, 150 N. E. 536. The fact that the agreement here is still partly executory does not serve to distinguish this case from those. Q. R. S. Co. v. Phillips-Jones Corporation, 194 App. Div. 170, 185 N. Y. S. 127, affirmed 233 N. Y. 626, 135 N....
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