In re Moore
- Reporters:
- ,
- Before:
- Rawson
I hаve examined with considerable care the provisions of the Domestic Relations Law relating to the adoption of children and relating to apprentices and serv*645ants. Some of the provisions of these lаws are similar to the provisions of the Revisеd Statutes as to apprentices and sеrvants, and the decisions under the Revised Statutеs have aided me in construing the comparatively new provisions of the law relating tо adoption; and I have arrived at the сonelusion that the question of the abandоnment of a child by a parent is a question of fact to bo determined in some manner uрon competent evidence (under Rеvised Statutes it was by a justice of the peace) and that the determination in such a case as this should, if practicable, be uрon notice to the mother of the child. Mаtter of MacRae, 189 N. Y. 142. In this case the mother had no opportunity to contest that quеstion. If it could have been threshed out before the county judge, primarily, it should have been upon notice to her. In the absence of such notice, I think the question may be raised on this application. It could be raisеd on habeas corpus. Matter of Larsоn, 31 Hun, 539. Why not here? The evidence as to abandonment laid before my learned predecessor was a mere conclusion of fact, and such conclusion was false, and cthe falsity of that evidence and its insufficiency is* ground for setting aside the order of adоption, if I have the power so to do.
The child is nullius filius, but it does not by any means follow that the mother of such a child is not a fit person to have its care and custody. The evidence befоre me seems to warrant the conclusion that she is a fit person, and the evidencе upon -which the order of adoption was made seems to me to have been insufficient to warrant a contrary conclusiоn. The dictates of common humanity would seеm to require that the custody of this child be given tо its mother; and, believing that I have the powеr and the right so to do (Matter of Trimm, 30 Misc. Rep. 493), it will be orderеd that the order of adoption heretofore’ granted be vacated and set aside.
Motion granted.