Weill's Estate, In re

Decision Date04 April 1962
Citation226 N.Y.S.2d 668,34 Misc.2d 227
PartiesApplication of Hermine GERARD, as Administratrix of the goods, chattels and credits of Evelyn Weill, deceased, for leave to compromise a cause of action for wrongful death and personal injuries against Morton S. Grossman and Edmund Grossman. Surrogate's Court, Nassau County
CourtNew York Surrogate Court

Jacob Gildsmith, New York City, for petitioner.

JOHN D. BENNETT, Surrogate.

In this proceeding to compromise an action for wrongful death and for direction as to distribution, a prior decision dated March 29, 1962, directed that a citation issue to the father of the deceased infant in order to afford him an opportunity to be heard on the allegation contained in the petition that he has no interest in the proceeds of the settlement under subdivision 4(c) of the section 133 of the Decedent Estate Law.

In the present application for a reconsideration of the prior decision, the petitioner cites two cases and subdivision 2 of section 133 of the Decedent Estate Law as authority for the proposition that it is the 'duty of the parent to seek out his child and to help support the child'.

Neither of the two cited cases nor subdivision 2 of section 133, however, have any bearing on the precise question of whether a parent is entitled to notice and an opprtunity to be heard on the issues of abandonment or failure to support. In each of the cited cases, Matter of Pridell (206 Misc. 316, 133 N.Y.S.2d 203) and Matter of Musczak (196 Misc. 364, 92 N.Y.S.2d 97), the father was cited and appeared as a respondent in the proceeding. In the Pridell case the father's testimony was taken, and in the Musczak case a special guardian was appointed to protect the incompetent father's interest.

This court cannot therefore adjudicate the issues of abandonment or failure to support without the father being made a party. The application for reconsideration is granted, and upon such reconsideration the court adheres to its original decision.

Proceed accordingly.

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