
    (December 20, 1948.)
    Wallace L. Brinkman, an Infant, by Isabel Brinkman, His Guardian ad Litem, Respondent, v. Oil Transfer Corporation, Appellant.
   Per Curiam.

The circumstance that the parent paid for some of the items of maintenance and cure, without express agreement providing for reimbursement by a minor son, ought not to relieve the defendant from the obligation to pay therefor.

The judgment should be affirmed, with costs.

Glennon and Callahan, JJ.

(dissenting). We dissent and vote to reverse the judgment in favor of the plaintiff and for dismissal of the complaint. An injured seaman may recover in an action for maintenance and cure only such expenses as he has actually incurred or for which he has made himself legally liable. On the present record it does not appear that the infant plaintiff has made any expenditures or legally obligated himself for payment of the sums awarded by the trial court for maintenance and cure in this case. (See Calmar S. S. Corp. v. Taylor, 303 U. S. 525; Sonnesen v. Panama Transport Co., 298 N. Y. 262; United States v. Johnson, 160 F. 2d 789, affd. as to maintenance and cure sub nom. Johnson v. United States, 333 U. S. 46; Bailey v. City of New York, 153 F. 2d 427; Field v. Waterman S. S. Corp., 104 F. 2d 849; The Baymead, 88 F. 2d 144; The Balsa, 10 F. 2d 408; The Santa Barbara, 263 F. 369; The Bouker No. 2, 241 F. 831, certiorari denied 245 U. S. 647; The Kenilworth, 144 F. 376, certiorari denied 202 U. S. 617; Robinson v. Swayne & Hoyt, 33 F. Supp. 93; Hegsted v. Standard Transp. Co., 1934 A.M.C. 190, 1005.) The dismissal of the action, however, should be deemed to be without prejudice to any right of the plaintiff to recover in another action for such actual expenditures as he may personally make in satisfaction of those items for hospital and medical services presently unpaid or future expenditures and obligations, if any, necessarily incurred by him for maintenance and cure.

Peck, P. J., Dore and Van Voorhis, JJ., concur in Per Curiam opinion; Glennon and Callahan, JJ., dissent and vote to reverse and dismiss the complaint, in an opinion.

Judgment affirmed, with costs. [185 Misc. 257.]  