Opinion
May 25, 1943.
On the court's own motion the decision of this court handed down May 17, 1943 [ ante, p. 791], is amended to read as follows: This is a proceeding under section 101, subdivision 4, of the Domestic Relations Court Act of the City of New York, which, so far as material, provides: "The * * * children * * * of a dependent person * * * who is unable to maintain himself and is likely to become a public charge are hereby declared to be severally chargeable with the support of such poor relative. The court shall determine and apportion the amount that each such person shall be required to contribute, as may be just and appropriate in view of the circumstances of the case and their respective means." The petition was directed against appellant, a daughter, and the other children of petitioner. At a prior hearing the other children, with the approval of the court, agreed to contribute to the support of their mother; and at a subsequent hearing the court took proof and directed that appellant pay two dollars weekly on account of her mother's support and maintenance. Assuming petitioner was "likely to become a public charge" at the time the petition was filed or the order herein made, the record is barren of proof that appellant is of sufficient means or ability to contribute to her mother's support. (See Hodson v. Stapleton, 248 App. Div. 524, 525, 526; Klebes v. Condon, 260 App. Div. 238, 239.) It is urged that as appellant and her husband, as tenants by the entirety, own a house, the husband should account to appellant for one half of the reasonable rental value of the house. But a tenant in common or a tenant by the entirety is not liable to his content for use and occupancy, except where one tenant occupies the premises to the exclusion of the other. ( Limberg v. Limberg, 256 App. Div. 721, affd. 281 N.Y. 821; Minion v. Warner, 185 App. Div. 246, 248; Neubeck v. Neubeck, 94 N.J. Eq. 167.) In the instant case the house is occupied by appellant, her husband and their two infant children. Order of the Domestic Relations Court of the City of New York (Family Court), County of Kings, reversed on the law and the facts, without costs, and petition as against appellant dismissed, without costs. Hagarty, Johnston, Adel, Taylor and Lewis, JJ., concur.