Defendant-appellant moved to dismiss the complaint as not stating facts sufficient to constitute a cause of action. He appeals from the order denying his motion.
The action was brought in January, 1939, by the public welfare commissioner of the city of Elmira to recover funds expended for the public relief of defendant’s son between December, 1933, and the end of the year 1938. The complaint states: “ That the said Edward Condon is a person for whom defendant was and is hable to support, and defendant has been discovered to have real and personal property.” Defendant’s liability, if any, arises under the Public Welfare Law (§ 125). “ The * * * father * * * of a recipient of public relief * * * shah, if of sufficient ability, be responsible for the support of such person.” *239There is no allegation in the complaint that defendant at the time when the rehef was furnished was “ of sufficient abihty ” to support his son. “ The defendant is only hable, however, for payments received by her husband after May 1, 1935, the date when she first became ‘ of sufficient abihty ’ to support him. By the express terms of the statute the duty to support is not absolute but exists only where the person hable is in a position to discharge the obhgation. The obvious purpose of the legislation is to permit the maintenance of an action where it is found that the pubhc has supported an indigent person who, during that period should have been supported by a relative ‘ of sufficient abihty ’ to have done so.” (Hodson v. Stapleton, 248 App. Div. 524, 525.) The complaint lacks a necessary allegation to create a cause of action. It should be dismissed with leave to plead over. (City of Worcester v. Quinn,-Mass.-; 23 N. E. [2d] 463; 125 A. L. R. 707.)
The order should be reversed on the law and facts, with ten dollars costs and disbursements. Motion to dismiss the complaint granted, with taxable costs, with leave to the plaintiff, within twenty days from the service of the order of reversal, to file an amended complaint, if he is so advised.
Crapser and Heffernan, JJ., concur; Bliss and Schenck, JJ., dissent; Bliss, J., in an opinion in which Schenck, J., concurs.