Ex parte Donnelly

This writ is directed against Jennie Foos, who is alleged to have the unlawful custody of the petitioner’s child, a girl about one year and nine months old. The respondent’s return to the writ is that her custody of the child is lawful, and based upon a written agreement entered into between the petitioner and the respondent and the latter’s husband. That instrument states that the petitioner, as the mother of the child, then three weeks old, does “hereby give said baby to Robert Foos and Jennie, his wife, of No. 3 Vanderveer street, Brooklyn, N. Y., for adoption by them, and I hereby promise and swear that I release all claim on said baby, now and forever; and Robert Foos and Jennie, his wife, do also promise and swear to adopt said child, to feed and clothe it in sickness and in health, and to educate her religiously and otherwise as long as she lives unmarried, and treat her as their own born child.” Legal adoption, however, did not follow the making of the agreement.

The petitioner, in support of the writ, says that, when she gave the custody of the child to Mrs. Foos, her husband had but recently died, which left her with said infant and another child to support, and that her time .was all occupied in earning a livelihood, and “for that reason your petitioner allowed the said Jennie Foos to have the custody of said child until such time as your petitioner could care for her.” She further says that she has remarried; that her husband is an engineer by occupation, and in receipt of good wages; and that both she' and her husband are in good health, and able to care for and properly bring up said infant. The facts are practically undisputed. The respondent rests upon the agreement as furnishing a legal ground for the retention of the child, and" the petitioner’s traverse to that return, as entered upon the record at the hearing, asserts that such return is insufficient in law.

A number of cases have been cited by the respondent in' support of her position, which, in effect, uphold an agreement to maintain and care for a minor child, but none of which relates to the custody and the bringing up of such child. All of them presented the question of a claim on behalf of the child for an interest in the estate of the person who became the child’s custodian by virtue of an agreement with its parents to care for it and make it an heir. Middleworth v. Ordway, 191 N. Y. 404 , 84 N. E. 291 ; Healy v. Healy, 55 App. Div. 315 , 66 N. Y. Supp. 927 ; Godine v. Kidd, 64 Hun, 585 , 19 N. Y. Supp. 335 . See, also, Brantingham v. Huff, 174 N. Y. 53 , 66 N. E. 620 , 95 Am. St. Rep. 545 ; Matter of Thorne, 155 N. Y. 140 , 49 N. E. 661 .

The question here is not as to the infant’s interest in the property or estate of Mr. and Mrs. Foos, but is wholly that of the welfare of the child during infancy.

Particular stress is laid by the respondent upon Judge Vann’s language in Middleworth v. Ordway, supra, at page 411 of 191 N. Y., and page 293 of 84 N. E., where he said that, “a father, unable to provide for his infant child, may transfer the custody, control, and the right to the services thereof to another.” But to this the learned judge added that such a transfer was “subject to the right of a court of equity to interfere in the interest of the child.” Where, therefore, as in this