People ex rel. Parr v. Parr — 25 Abb. N. Cas. 43

Majority

p. 43

PEOPLE ex rel. PARR v. PARR.

[Affirming 49 Hun, 473.]

N. Y. Court of Appeals ;

May, 1890.

Headnote

1. Infants; proceedings relating to custody.~\ A county judge has not jurisdiction of the care, custody and control of infants, but such power is vested in the supreme court. It cannot be exercised by a justice of the supreme court out of court, nor, consequently, by a county judge.

2. People ex rel. Williams ©. Corey, 46 Hun, 408 , approved and followed.

3. Statute; collateral amendment.] Although when Code Civ. Pro. § 241 (which conferred on county judges the powers then exercised by a justice of the supreme court at chambers) went into effect, such justices could exercise the power to determine as to the custody of infants ; yet upon the revocation of such power in justices of the supreme court, by the repealing act of 1877 (L. 1877, c. 417, subd. 21) the power of the county judge fell with itt and the altered powers of justices of the supreme court form the standard by which to measure those of the county judge.^[1]

4. Habeas corpus.1 An order of a county judge upon habeas corpus on the relation of the father of an infant against its mother, which purports to remove the restraint imposed upon such child by the mother and award its custody to the father, cannot, where there is no unlawful imprisonment but merely custody by the mother, be separated as to its provisions, and sustained as to the first direction, as a relief from restraint, where the judge had no jurisdiction to make a disposition of the custody of the infant.

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This proceeding was by habeas corpus on the relation of John Parr against Margaret S. Parr, his wife, who was alleged to detain their infant son, John T. Parr, claiming the right to his possession as his mother. Upon the hearing upon the return to the writ and the reply thereto, before the county judge of Albany County, a final order was made as follows :

“It is ordered and adjudged that all restraint imposed upon the said John T. Parr by the said Margaret S. Parr, be and it is hereby removed, and the said Margaret S. Parr is prohibited from imposing any restraint upon the liberty of the said John T. Parr.

“ And it is further ordered that the custody of said child John T. Parr, be and is hereby awarded to his father, the relator, John Parr, and the said John Parr is authorized to take the custody of said child John T. Parr, and to support and maintain said John T. Parr.”

Upon appeal to the General Term of the Supreme Court for the Third Judicial Department this order was reversed, [Reported 49 Hun, 473] and from such reversal this appeal was taken by the relator.

Edward J. Meegan, for appellant.

George H. Stevens, for respondent.

We think the supreme court made the proper disposition of this case, and its order should be affirmed, with costs. The adjudication was based by the supreme court upon the authority of the case of People ex rel. Williams v. Corey, 46 Hun, 408 . We have no doubt that case was correctly decided and for the reasons stated by the learned judge in his opinion therein.

The counsel for the relator in the case at bar, however, says that one point in the argument he makes before us was not made in the above cited case, and he urges that it is sufficient to call for a reversal of this order. It is said that

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section 241 of the Code of Civil Procedure confers all the power upon county judges which was then. exercised by a justice of the supreme court at chambers, and as such justice at that time could exercise the power to determine as to the custody of infants at chambers, the same power was by the above section conferred upon county judges.

We assume that to be so. But counsel further says that when such power was subsequently taken away from a justice of the supreme court at chambers, and was confined to the court itself, nevertheless the power still remained with the county judge, because it existed in the justice of the supreme court at chambers when the powers of that officer at chambers were conferred upon county judges.

We are not of that opinion. The powers of the county judge alter with the alteration of the powers of the justice of the supreme court at chambers, for the powers of that officer at chambers form the standard by which to measure those of the county judge in that respect.

The counsel cites many cases, but none of them, as we think, is in point. The portion of the order which assumed to withdraw the alleged illegal restraint of the mother over the child, can not be separated from the portion granting the custody to the father, and in this regard we agree also with the opinion of the learned judge who wrote at the general term herein.

The order of the general term should, therefore, be affirmed, with costs.

All the judges concurred, except Gray, J., absent.