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SUPREME COURT OF NEW YORK, SPECIAL TERM, KINGS COUNTY 1969.NY.41955 <>; 301 N.Y.S.2d 237; 59 Misc. 2d 957 June 10, 1969 MURRAY WENER, PLAINTIFF,v.ELAINE WENER, DEFENDANT Halper, Passick & Prince (Wallace Prince of counsel), for plaintiff. Ritter & Ritter (Alfred F. Ritter of counsel), for defendant. Abraham J. Multer, J. Author: Multer

Abraham J. Multer, J.

Author: Multer

 This action was originally brought by plaintiff husband for divorce. Defendant wife answered and counterclaimed for a divorce and for support for herself and a child, neither an issue of the marriage nor the natural or adopted child of either party. On the trial the husband withdrew his complaint and amended his reply to the counterclaim so as not to contest the wife's right to a divorce, but did continue to put in issue the wife's right to support for herself, his obligation to support the infant, and the matter of the amount of counsel fees to be awarded to the wife's attorney.

Without objection, on the trial, he was permitted to amend his reply to assert an affirmative defense of the six-year Statute of Limitations against the claim of support for the child.

At the conclusion of the trial, the court awarded the wife a divorce but reserved decision on the questions of support and counsel fee. Subsequently, and on the court's own motion, an order was entered appointing Maurice I. Rappaport, Esq., the guardian ad litem of the child, because of the apparent conflict of interest between the husband and wife. The guardian rendered very lawyer-like and commendable services on behalf of the infant. His report has been served and filed. At his suggestion, the trial was reopened and additional proof adduced which is determinative of the rights of the child.

The attorneys for the parties and the guardian ad litem agree, and the court's own research indicates, that this is a case of first impression as to the question of the obligation to support a child by one, neither its natural nor foster parent.

The parties were married in January, 1952 and lived together as man and wife until 1959. There was no issue of the marriage despite the desire of both parties to have children. It was agreed that no good purpose would be served by the court taking proof as to the reasons therefor, which accounts for the absence from this record of any proof on that subject.

In 1958 the parties decided to adopt a child. In October, 1958 they were advised of the possibility of acquiring such a child in Florida, and the wife then went to Florida for that purpose. The husband bought the round-trip transportation tickets, escorted his wife to the airport in New York and communicated with her by telephone about the child while she was in Florida. When the child was born, the mother made arrangements at the hospital to take the child to Brooklyn where the parties had resided. Shortly after the child's birth, in November, 1958 the wife did bring the child with her to New York. The husband together with his mother met his wife and the child at the airport and escorted them to the apartment where the husband and wife had theretofore lived together. Upon arrival at their home, the wife found a bassinet, diapers and baby bottles. The baby continued to reside there with the husband and wife until they separated.

The wife says that she and her husband had agreed to adopt the child, and the court believes that testimony. The husband now denies that he ever made such an agreement and insists that he never wanted the child and does not know how the baby articles got into his apartment. The court does not believe the husband. Neither of the parties has ever adopted this child. The identity and present whereabouts of the natural parents of this child are unknown.

Ordinarily the court would not be interested in the religious affiliations, or lack thereof, of litigants. In this case, however, that has an important bearing upon the outcome. The parties are of the Jewish faith. The husband was born into an orthodox home and became a "bar mitzvah." The marriage of the parties to this action was consummated in accordance with orthodox Jewish tradition, the ceremony being performed by an orthodox rabbi. The child's guardian ad litem caused to be produced at the trial, and there was received in evidence, the "Ketuba", the traditional marriage contract, which is written both in Hebrew and Aramaic, and in English. It is signed by the parties as bridegroom and bride as well as by the rabbi who performed the marriage and by two witnesses. It provides that they were "betrothed according to the Laws of Moses and Israel", and that the husband took upon himself all those obligations "as are prescribed by our religious statutes." Under the circumstances prevailing in this case, the agreement by the husband and wife to adopt the child, even without any formal adoption and in the absence of the natural parents, as between the parties and this child, requires that the court find that both parties must support the child. Assuming arguendo only, however, that there was no such agreement to adopt the child, the marriage contract creates that obligation on the husband's part. (See Jewish Marriage Contract, by L. Epstein, pp. 5 of 171.)

Under the Laws and Moses and Israel, the head of every household who takes a child into his household puts himself in loco parentis and is as liable for the support of such infant as though it were his own. Although Orthodox, Conservative and Reform Judaism may differ in some respects, this is one of the many instances where there is no disagreement and all agree upon the foregoing statement.

No legal precedent has been found in Anglo-Saxon jurisprudence, in the Napoleonic Code or in the Code of Justinian. Wigmore's "Panorama of Worlds Legal Systems" indicates that the Chinese Law on the subject is the same as the Jewish law.

The Jewish law traces its foundation for this principle to the Old Testament. The first reference on the subject is found in the Book of Ruth (IV:17) where we are told that Ruth bore a son and that Naomi brought him up and he was called after her name and forever after he was known as Naomi's son. In the Jerusalem, also known as the Palestinian, Talmud (Sanhedrin, p. 19), we find the principle enunciated as: Whoever brings up an orphan in his home, scripture ascribes it to him as though he had begotten the child. In Psalms (LXXVII:16) we find reference to the fact that the sons of Jacob were sustained by Joseph and therefore they were called after his name, that is Joseph's, and were thereafter known as the sons of Jacob and Joseph.

In the "Spirit of Jewish Law" written by George Horowitz, a New York lawyer well schooled in Jewish law, we find the principle enunciated as: "There seems to be no public institution in the Jewish community for foundlings. The usual practice was for some family to take the child in and bring it up as a member of the household. There was nothing in Jewish law like 'adoption proceedings'. After being declared a foundling, the child was to be presumed to be the offspring of lawful marriage." Maimonides (M. T. Inheritance II:14) wrote on the subject, "Even if a child is a pagan, he is a member of the family with the rights and duties pertaining to such membership." The Book of Leviticus, 19:34, sums it up as follows: "A stranger that sojourneth with you shall be as the homeborn among you and thou shalt love him as thyself."

Even when the husband does not know of the wife's actions, he is responsible for them and what the wife does she does for ...

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