In re Meyer — 146 A.D. 626

Majority

p. 626

In the Matter of the Application of Leopold Alfred Meyer, Appellant, Respondent, for a Writ of Habeas Corpus to Bring up the Body of Augusta Mildred Meyer, an Infant. Edward Robitzek and Augusta E. Robitzek, Appellants, Respondents.

First Department,

October 20, 1911.

Headnote

Parent and child — habeas corpus — reference.

Where a writ of habeas corpus awarding custody of a child of tender years to her father is granted solely upon affidavits so conflicting that it is impossible to determine whether the father is a proper person to have the custody, of whether it is to the best interest of the infant, the order will be reversed and the matter sent to a referee to take proof and report to the Special Term with an opinion.

Cross-appeals by the petitioner, Leopold Alfred Meyer, and by Edward Eobitzek and another, from an order of the-Supreme

p. 627

Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of June, 1911..

Ernest Hall, for Edward Robitzek and Augusta E. Robitzek.

Jacob H. Corn, for Leopold Alfred Meyer.

This appeal is from an order sustaining a writ of habeas corpus and awarding the custody.of an infant under two years of age to the father, Leopold Alfred Meyer, and permitting the maternal grandparents' to visit such infant at stated periods and permitting her to remain at their residence for a period of at least six days in each month. The father of the infant appeals from so much of the order as permits the grandparents to visit the child and- directs her to be taken to their residence for a period of at least six days in each and every month, and the grandparents appeal from so much of the order as awards the custody to the father. On the return of the writ the learned justice sitting at Special Term disposed of the matter solely upon affidavits presented by the respective parties. These affidavits are so conflicting that it is utterly impossible to determine whether the father is a proper person to have the custody of the infant, or whether it will be for her interest to be placed in the custody of the grandparents.

In view of the conflict in the affidavits, I think the proper disposition to make of this appeal is to reverse the order appealed from, without costs to either party, and send' the matter to a referee to take proof and report the same, together with his opinion thereon, to the Special Term of this court.

Ingraham, P. J., Laughlin, Clarke and Miller, JJ., concurred.

Order reversed, without costs, and reference ordered as stated in opinion. Order to be settled on notice.