Opinion
December 29, 1961
Appeal from an order which directed the appellant to contribute $7.50 a week to the support of his mother. While the notice served on the appellant fails to set forth the appropriate statute relied upon by the Welfare Commissioner, his counsel in his brief on this appeal referred to section 101 of the Social Welfare Law and section 914 of the Code of Criminal Procedure. The facts disclose that at the time of the hearing, the mother was living with another son and the Welfare Department was contributing $29.90 a month toward her support. At the hearing which the appellant attended, pursuant to the notice, he testified that in 1959 he earned approximately $4,000. From January 1 to September, 1960 — date of hearing — he earned $2,358.80 derived from 21 weeks of work and the balance was the proceeds from unemployment insurance benefits at $45 per week. It was further developed that he was married; had a 12-year-old daughter living at home; that he paid $50 per month rent and that he was liable for $50 per month for payments on an automobile. The appellant appeared without counsel and was the only one who testified at the cursory examination. Section 101 of the Social Welfare Law provides so far as pertinent to these facts, that a child is "if of sufficient ability" responsible for the support of his mother if, among other things, she is a recipient of public assistance. Section 914 of the Code of Criminal Procedure provides that a child, "if of sufficient ability", is responsible for the support of his mother in the same manner as in section 101 of the Social Welfare Law. Section 916 of the Code of Criminal Procedure states in part: "The relatives served with such notice shall be deemed to be of sufficient ability, unless the contrary shall affirmatively appear to the satisfaction of the court or a judge thereof." If, in this case, the court was relying upon such presumption, the appellant should have been so informed and given a reasonable opportunity to prove to the contrary. Recognizing as we do that proceedings of this type are conducted in an informal manner, we still are of the opinion that a record should be developed that justifies subsequent action by the court in directing payment, and we have recently required such records in other similar types of proceedings. ( Matter of St. Clare's Hosp. v. Breslin, 14 A.D.2d 380; Matter of Briggs v. Broome Co. Sales Tax Director, 15 A.D.2d 34.) We have difficulty here finding any logical or reasonable basis for sustaining the order directing payments, particularly when from this record it appears that for some weeks prior to the order made herein, the appellant had been the recipient of public assistance in the form of unemployment insurance benefits. It may well be that such action by the court was justified but from this record we are unable to make such a determination. Order reversed and matter remitted, without costs. Bergan, P.J., Gibson, Herlihy and Taylor, JJ., concur.