Majority
p. 795The People of the State of New York ex rel. Lucy Allen, Resp’t, v. William H. Allen, App’lt. (Court of Appeals, Filed March 25, 1887.)
Headnote
Appeal—Divorce—Custody of children.Where the court below upon a view of all the existing facts relating to the welfare and interest of infants, exercised their discretion on awarding to the mother the custody of the children, not giving to an Illinois decree awarding the custody to her, the force of an estoppel or judgment, but simply regarding it as a circumstance bearing upon discretion to be exercised, this court will not disturb its decision upon appeal.
Appeal from an order and judgment of the supreme court, general term, fifth department, affirming an order of the Monroe special term, awarding the custody of Mary Allen, Thomas Allen and John Allen, infant children of Lucy Allen and William H. Allen to their mother Lucy Allen.
For a full statement of facts, see 2 N. Y. State Rep., 199.
Theo. Bacon, for app’lt; John M. Davy, for resp’t.
We dismiss this appeal for the reason that the courts below, upon a view of all the existing facts relating to the welfare and interests of the infants, exercised their discretion in awarding to the mother the custody of the children; and in so doing gave to the Illinois decree not the force of an estoppel, or the conclusive effect sometimes due to a judgment, but simply regarded it as a fact or circumstance bearing upon the discretion to be exercised, without dictating or controlling it.
Appeal dismissed, with costs.
All concur.