283 A.D. 817 | N.Y. App. Div. | 1954
This proceeding was instituted in the Supreme Court, Westchester County, to obtain custody of petitioner’s infant daughter who is now living with her mother, his divorced wife, on the ground that the mother has become a chronic alcoholic, with the result that the child’s health has become impaired and that she is neglected. As a separate defense, the mother has pleaded that the Children’s Court of the County of Westchester has exclusive jurisdiction of this proceeding. The Special Term granted petitioner’s motion to strike out this defense. The mother appeals from the order granting the motion. Order affirmed, without costs. Despite the statutory grant of authority to the Children’s Courts in certain enumerated situations, the plenary jurisdiction of the Supreme Court to determine the proper custody of an infant child remains unabridged and unimpaired. (Children’s Court Act, § 28; L. 1922, eh. 547; People ex rel. Riesner v. New York Nursery & Child’s Sosp., 230 N. Y. 119, 124; Matter of Gilmore, 264 App. Div. 172, 173; Matter of Brock, 245 App. Div. 5, 12.) If the child be neglected or abandoned, within the statutory definition of those terms (Children’s Court Act, § 2, subd. 4; L. 1922, ch. 547), such fact, if established by the proof, serves only to confer upon the Children’s Court a limited jurisdiction which is, to the extent to which jurisdiction is granted, concurrent with the jurisdiction of the Supreme Court; it does not and it cannot operate to vest in the Children’s Court exclusive jurisdiction as against the Supreme Court or oust the Supreme Court of its traditional plenary jurisdiction as parens patriae — a jurisdiction which has been preserved by the Constitution (see cases cited above; also: Finlay v. Finlay, 240 N. Y. 429, 432-434; cf. Matter of Cole, 212 App. Div. 427, 428; Matter of Walsh, 146 Mise. 604, 605; Matter of Caposella, 255 App. Div. 987). Nolan, P. J., Adel, Wenzel, MaeCrate and Beldoek, JJ., concur.