While we unreservedly agree with the result reached by the majority, we are unable to accept some of the reasoning expressed to support that result. Since the unacceptable portions are, in our opinion, intrinsic, we deem it necessary to state our views.
*102The exceptions to the mandatory provisions of section 350-j of the Social Services Law to provide emergency aid do not exist in either of the instant cases. Petitioners allege that they are destitute. There is no proof to the contrary, since emergency assistance was denied without an investigation or hearing, solely on the basis of subdivisions (b) and (c) of section 372.2 of the Department Regulations (18 NTCRR Part 372), which provide that emergency assistance shall not be given when destitution is due to loss, theft or diversion of a grant already made. Appellants contend this regulation prohibits emergency assistance in the Gipson case because destitution was due to a loss by theft, and in the Domine case, because petitioner had already received her full allotment. Regardless of the cause of such destitution, other than refusal of employment without good cause, appellant County Department of Social Services is obligated to follow the mandate of section 350-j. To the extent that the regulation violates this mandate, it is null and void, both in its application to children and adults.
It is our view that a summary refusal of emergency assistance where there are children and an allegation of destitution, without either investigation or hearing, is a deprivation of due process. (Goldberg v. Kelly, 397 U. S. 254.) We further conclude, on this record, and under the existing law, that appellant County Department of Social Services was required to ascertain each of the petitioners’ circumstances before denying emergency aid. The procedure followed by appellant not only contravenes the prevailing law, but defeats the intent and purpose of the statute in question.
Staley, Jr., and Kane, JJ., concur with Herlihy, P. J.; ■Sweeney and Main, JJ., concur in a separate opinion by SWEEEEY, J.
Judgment modified, so as to grant relief only to the extent of providing that the interim ordered assistance by the court is not subject to reimbursement and by annulling the determinations that the infants were not entitled to emergency assistance, with remittal to the appropriate commissioner for such further proceedings as may be necessary and by denying further relief to the petitioners, and, as so modified, affirmed, without costs.