Beadleston v. Beadleston — 19 N.Y. St. Rep. 747

Majority

p. 747

Alfred N. Beadleston, App’lt, v. Mary E. Beadleston, Resp’t.

(Supreme Court, General Term, First Department,

Filed November 24, 1888.)

Headnote

Stipulation—Effect of—Order in violation of is unauthorized.

Where the parties to a matrimonial action have entered into a stipulation regarding the place oí residence of their daughter during her vacation from school, an order assigning her to the custody of the mother, in violation of the terms of the stipulation, is unauthorized, even though the other party fails to co-operate in carrying into effect the terms of the stipulation.

Appeal from an order assigning as a residence for Emma A. Beadleston, the daughter of the parties, the hotel in which her mother was a resident for the summer.

Samuel Untermeyer for app’lt; Eugene D. Hawkins, for resp’t.

The order affected the residence of this daughter during the vacation in her school, extending from the early part of July, 1885, until the early part of the fall. The parties themselves had stipulated for the disposition of her custody during the pendency of the action. And their stipulation did not permit 'her to be assigned to the company or custody of her mother, but it contemplated another residence for her free from the influence which her mother might be expected to exercise over her, to the prejudice of her father, the plaintiff. To assign this residence was accordingly in violation of the agreement which had been made and entered into by the parties for this purpose. And this part of the order, as well as that requiring the plaintiff to pay, during the summer vacation, the sum of fifteen dollars per week for the support of his daughter at this hotel, seems to have been without authority.

There was reason for action on the part of the court, it is true, because of the refusal of the plaintiff’s attorneys to co-operate with the attorneys for the defendant in selecting a place of residence for this daughter. But that was not sufficient to disregard the stipulation which the parties had entered into and place the daughter under the influence and control of her mother. It was still the duty of the court to secure for her a different place of residence.

The order should accordingly be reversed, but as the period over which it was designed that it should operate has long since expired, it may be, without costs.

Van Brunt, Ch. J., concurs; Bartlett, J., dissents.