Opinion
December 8, 1948.
Bernard Kaufman for plaintiff.
Eugene J. Finnegan and John J. Sullivan for defendant.
This is a motion for an order directing defendant to pay a sum of money for the support, maintenance and education of the infant plaintiff, pendente lite, and for counsel fee.
The action is brought by the infant, by his mother as guardian ad litem, to (1) set aside an alleged separation agreement between his parents, because of alleged fraudulent representations; (2) for damages alleged to have been sustained because of such fraud, and (3) to set aside a decree of divorce obtained by his parents in a foreign State.
That the court has power to grant pendente lite an allowance for support and maintenance and for counsel fee in a matrimonial action there is no doubt, but the question for determination here is whether an infant may be granted such allowance for support and maintenance and for a reasonable counsel fee to prosecute such action as this.
The application is based on the contention that the defendant husband is liable for necessaries of the infant plaintiff. That would be so in an action at law brought by an infant plaintiff or brought on his behalf. The cases cited in the brief support this viewpoint. There is nothing in the decisions which would permit such an allowance pendente lite.
Authority for such allowance pendente lite, if any, must be found in the statutes. While there are statutory provisions for such allowance in matrimonial actions, there is none for actions of this nature. Since the court is without such authority, the motion must be denied.
Settle order.