268 A.D. 938 | N.Y. App. Div. | 1944
Appeal from an order of the Supreme Court made at Albany Special Term dated March 31, 1943, signed and entered in the Albany County clerk’s office August 6, 1943, in a habeas corpus proceeding involving the custody of an infant child of the parties, and which denied petitioner-appellant’s motion for an award of such custody to him and continued the proceeding to determine the proper custody. The motion for the award of custody was based solely upon an order for such award by the Probate Court of Hampden County, Massachusetts, pendente lite, in an action of separation brought there by petitioner-appellant against respondent on the ground she had deserted him. Respondent and her child were then out of the State and in Albany. Process therein was served upon respondent by registered mail received by her in Albany. The order appealed from denied the motion upon the ground that insofar as the order or decree in Massachusetts assumed to affect respondent m personam and thus was counted upon in the instant proceeding to compel her obedience by surrendering her child to her husband, it was ineffectual since the Probate Court in Massachusetts had not acquired jurisdiction of her person. The order appealed from should be affirmed, with costs. Order appealed from affirmed, with twenty-five dollars costs and disbursements. All concur. [See post, p. 1072.]
