Wasserman v. Weisner
| Citation | 234 N.Y.S.2d 128,36 Misc.2d 916 |
| Parties | Daryl WASSERMAN, Ira Wasserman and Peter Wasserman, infants, by their Guardian ad Litem, Renee Weisner, Plaintiffs, v. Irving WEISNER, Defendant. |
| Decision Date | 11 October 1962 |
| Court | United States State Supreme Court (New York) |
Harry H. Lipsig New York City, for plaintiffs.
Morris H. Halpern, New York City, for defendant.
Defendant moves, pursuant to Rule 106(4) of the Rules of Civil Practice, to dismiss the amended complaint on the ground of legal insufficiency.
The three infant plaintiffs are children of the guardian ad litem by a former marriage. The complaint alleges that some time before the marriage of the defendant and the guardian, that Seymour Wasserman (the guardian's then husband and the natural father of the infant plaintiffs) agreed in writing with the guardian, by a separation agreement and trust indenture, to provide for their children (the infant plaintiffs herein). Continuing, the complaint alleges that, in consideration of the guardian's marriage to defendant and of the infant plaintiffs' agreement to forsake any support, maintenance and education benefits from their natural father, and their acceptance of defendant 'in propria patria and as their father,' defendant offered to adopt them; to create a trust of one million dollars for each of the infant plaintiffs; to support, maintain and educate them; and to provide suitably for them in his will.
Further, it is alleged that in reliance upon defendant's representations of 'great wealth' and his offer, as above set forth, the infant plaintiffs became estranged from their natural father; refused to accept moneys from him for their support; refused to permit him to visit them; and have accepted and treated this defendant as their father in their natural father's place and stead.
As a result of defendant's asserted failure to support them or to create or maintain a trust and a provision in his will for their benefit, the infant plaintiffs seek $1,000,000. as exemplary damages; $3,000,000. as compensatory damages; and accruing damages at the rate of $1,000. a week for the breach of the alleged 'agreement' of support.
In the court's opinion, this action as pleaded in the amended complaint, may not be maintained as a matter of law. The consideration for the alleged agreement sued upon is illegal, unenforceable and contrary to public policy and morale in that such contract, in effect, tends to support a claim for alienation of affections outlawed by Article 2-A of the Civil Practice Act.
No person may maintain an action to enforce any right based upon an agreement to marry and a subsequent breach thereof. The applicable statute may not be circumvented merely by instituting this action in the names of the infant children, rather than in the name of the guardian individually (Katz v. Katz, 197 Misc. 412, 95 N .Y.S.2d 863). The infant plaintiffs here, at best, are in the position of third-party beneficiaries, and possess no greater right to enforce the alleged contract than the...
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McGrady v. Rosenbaum
...precludes an action for alienation of affections of a child. (Katz v. Katz, 197 Misc. 412, 95 N.Y.S.2d 863; see Wasserman v. Weisner, 36 Misc.2d 916, 234 N.Y.S.2d 128; Miles v. Cuthbert, 122 N.Y.S. 703; see McEntee v. New York Foundling Hosp., supra). As was said in Ruza, supra, at 286 App.......
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BAII Banking Corp. v. UPG, Inc., 961
...possessed no greater right to enforce a contract than the actual parties to the contract. See Wasserman v. Weisner, 36 Misc.2d 916, 917, 234 N.Y.S.2d 128, 130 (Sup.Ct. New York County 1962); see also Restatement (Second) of Contracts § 309 cmts. b & c (1981). Accordingly, BAII's rights as a......