
    Howard B. Hayden, an Infant, as a Poor Person, by Henry Burlew, his Guardian ad Litem, Appellant, v. Sely C. Hayden, Respondent.
    
      Promise by o, stranger to support an infant — when not enforeible—costs of an appeal against one who sues as a poor person.
    
    A promise made by a person, not related to an infant, that he will, in consideration of the surrender of the infant to him, maintain him as a son, is not sustained by any consideration.
    An infant cannot, after having been supported under such a promise until he has reached the age of nineteen, sustain an action to compel the party making such promise to pay for his further support.
    One who sues as a poor person has a right to appeal from a judgment, but he is not relieved from paying the costs of an unsuccessful appeal.
    Appeal by the plaintiff, Howard B. Hayden, an infant, as a poor person, by Henry Burlew, as guardian ad litem, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Onondaga on the 28th day of August, 1895, upon the decision of the court, after a trial at the Onondaga Special Term.
    W. E. Pratt, for the appellant.
    
      George R. Cook, for the respondent.
   Green, J.:

The material allegations contained in the complaint are, that the parents of the infant plaintiff died in or about the year 1880, when he was of the age of about six years; that he then lived with Mrs. Hall, his aunt, until'the year 1884, when she entered into a contract with the defendant, whereby, in consideration that she would surrender the care and custody of the infant to the defendant, he agreed to adopt the infant and to support, maintain and provide, and to treat and care for him in each and every respect as his own son; that, in pursuance of such agreement, Mrs. Hall surrendered to defendant the custody of the infant, who thereupon lived with, and was maintained by, defendant, and was treated in all respects as his own son, until March, 1894, when he had attained his nineteenth year; that the infant’s name was changed to Hayden; that, in the month of March, 1894, the defendant refused to any longer support the infant and excluded him from his dwelling.

The relief demanded in the complaint is, that the defendant be compelled to give the infant such sums of money as to the court shall seem just and sufficient for his support and maintenance, and for such other relief as the court shall deem just.

It appears from the evidence that the alleged agreement was oral. It is further disclosed by the record that the infant’s father died in 1880 and his mother in 1882; that he then lived with his aunt, Mrs. Hall, three months, when he was placed in an orphan asylum by her husband, and remained there two months; that he was then taken therefrom by Mrs. Chasm er, a relative of his father, and remained with her until he was taken into defendant’s family.

The nearest relatives of the plaintiff, at the time of the alleged agreement of adoption, were his brother, three sisters and a paternal grandmother. There were three other aunts besides Mrs. Hall. No guardian of the infant had ever been appointed.

It is conceded that the defendant faithfully fulfilled his promise or agreement to support, maintain and educate the plaintiff, and to treat him as his own son, up to the time he had attained his nineteenth year. Plaintiff’s counsel says that plaintiff continued in defendant’s family under this agreement, brought up in idleness and luxury, with no idea of self-support.”

Plaintiff testified that $1,000 or $1,200 a year would be a reasonable amount for his support in the manner in which he had been supported by defendant.

We have not been cited to, nor are we able to find, any authority for the maintaining of an action of this character, nor can we conceive of any principle of law upon which it may be upheld.

It is a matter of no consequence to determine whether the agreement should be limited to the time of the plaintiff’s majority or to the time when he became of sufficient capacity to, or ability to, support himself. Assuming, however, that the defendant’s obligation continued during the plaintiff’s infancy, the facts are, nevertheless, wholly insufficient to establish a cause of action.

There is no proof of any breach of the agreement as alleged in the complaint. The breach of the agreement is that the defendant did not, after plaintiff attained his nineteenth year, support and maintain him as he would his own son. Non constat but that defendant, under the same state of circumstances, would have compelled his own son to support himself. Surely, the plaintiff can claim no other or greater privilege, benefit or advantage than might be lawfully or rightfully refused by defendant to his own son. It would be a novelty in the law for a son to maintain an action against his father to compel him to furnish supplies of food and clothing, or to advance him the requisite funds for that purpose.

A parent is bound to support his minor child, and is entitled to his services and to receive earnings. But here the defendant is not entitled to the plaintiff’s services or his earnings, and yet it is contended that defendant is under a legal obligation to support the plaintiff in idleness and luxury. There is no reciprocity here, nor any consideration whatever.

The evidence shows that defendant has faithfully fulfilled all the obligations or duties that could be reasonably expected or required of him.

The respondent insists that this appeal should be dismissed on the ground that the appellant cannot prosecute the appeal as a poor person. It is provided by section 1294 of the Code of Civil Procedure that any party aggrieved may appeal from a judgment or order. The appellant had a right to appeal from the judgment herein, but he cannot avail himself of the privilege of prosecuting the appeal as a poor person so as to be absolved from the liability for costs of the appeal. (Morse v. City of Troy, 38 Hun, 301.)

The judgment should be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.  