Commissioner of Welfare v. De Santos

• Decision Date: 10 December 1956
• Parties: COMMISSIONER OF WELFARE, Complainant, v. August R. DE SANTOS, Defendant.
• Court: New York Court of Special Sessions

Page 854

157 N.Y.S.2d 854

4 Misc.2d 515

COMMISSIONER OF WELFARE, Complainant, v. August R. DE SANTOS, Defendant.

Court of Special Sessions, New York County.

Dec. 10, 1956.

Peter Campbell Brown, Corp. Counsel, New York City, Sol Cooperman, Brooklyn, of counsel, for complainant.

George J. Todaro, New York City, for defendant.

RINGEL, Justice.

The defendant is before the court on a petition of the Commissioner of Welfare to enforce the payment of arrears by summary action, commitment or otherwise, those arrears in the sum of $700 having accrued before the child attained the age of sixteen years, which occurred on May 21, 1956. This petition for enforcement of payment of these arrears is made after the child attained the age of sixteen. Defendant opposes the petition and asserts that since the child reached the age of sixteen before instituting these proceedings, that the court is without jurisdiction to entertain them. Defendant argues and all proceedings and applications under the paternity statute are barred because the filiation order expires upon the child attaining the age of sixteen as set forth in the statute, and this in effect makes the child's sixteenth birthday a statute of limitation for the commencement of proceedings to enforce support.

Under the common law, the father of an illegitimate child was under no legal obligation whatever to support such child, People ex rel. Lawton v. Snell, 216 N.Y. 527, 111 N.E. 50; Hutton v. Bretsch, 216 N.Y. 23, 109 N.E. 858; Todd v. Weber, 95 N.Y. 181.

The statute under which these proceedings were instituted, is New York City Criminal Courts Act, Article V. Section 64 thereof authorizes a suit by the Commissioner of Welfare of the City of New York on behalf of any illegitimate child who is or is liable to be a public charge, provided that said child is under sixteen years of age. In the absence of establishing the fact that the child is or is liable to be a public charge, the mother or other interested party is barred from instituting suit if the child is more than two years of age, unless paternity has been acknowledged, in writing or by furnishing support.

As recently as November 27, 1956, the Appellate Division, First Department, not only re-affirmed the two year limitation applicable to the mother, but also held that the written acknowledgment of paternity, to be sufficient to toll the statute of limitations, must be clear, definite and unequivocal. The majority of the court noted, Schuerf v. Fowler, App.Div., 156 N.Y.S.2d 859, 860:

'This filiation proceeding was instituted more than two years after the birth of the child. Under Section 64, subdivision (1) of the New York City Criminal Courts Act such proceedings may not be brought after the lapse of more than two years from the birth of the child, unless paternity has been acknowledged by the father in writing or by the furnishing of support. * * *

'We construe the law to require a clear acknowledgment about which there is no doubt or equivocation. That does not mean that the acknowledgment would have to be in any precise words, but it should be clear and definite on the face of the writing or in its context. The writing in the present case does not quite reach that clarity.'

It is clear from a reading of Section 64 that the age of sixteen is a statute of limitations applicable to the Commissioner of Welfare for the commencement of paternity proceedings, and the Court of Appeals has so construed Section 64 in Commissioner of Public Welfare of City of New York, on Complaint of Marchant v. Simon, 270 N.Y. 188, 200 N.E. 781.

The legal question presented by this petition is whether the court has jurisdiction to enforce, after the child has attained the age of sixteen, arrears that accrued prior to the child's sixteenth birthday.

There would be no difficulty in resolving this question if New York had a statute similar to section 32 of English Criminal Justice Administration Act, which excepts an application of this nature from the operation of the statute of limitations. The English statute, which authorizes a proceeding to enforce payment of arrears after the order has expired, provides:

'32. Recovery of arrears on...