People ex rel. Johnson v. Erbert

| N.Y. Sup. Ct. | Feb 15, 1864

Gould, J.

In the view I take of this matter, it is not necessary for me to pass upon the legality of the indentures, any further than to hold that, as far as the respondent Erbert is concerned, they are voluntarily and legally entered into, and that he cannot, now or ever, be allowed to question their validity, or evade his responsibility under them.

This being so, and there being thus legally secured to these children a home, where, the evidence shows, they can be, and in all human probability will be, well provided for, and kindly and carefully brought up to some reputable mode of life, the case is one to be considered under the general equitable powers of this court. This court, like the former Court of Chancery, exercises a general care and custody over all minors, and “ this power is for the benefit of the child, and is not to be defeated by one having a mere legal title to the custody of the child,” whether that title (or right) arise from a natural relationship, or from an act of the law.

As to the daughter Anna, while the relator, in terms, denies that he gave her to the respondent, to be by him and his wife adopted as their own child, he does not state how, or upon what terms, he did leave her with Erbert, although he does state that he left the boys there, upon an agreement to pay for their board. This failure to give any affirmative version, on his part, of the way in which she was committed to Erbert’s care, is strong ground for believing the latter’s statement on that subject, and the testimony of Birdsall renders it entirely clear that the relator, on this point, has sworn to what is false. And as he has thus done, in a very material point, he can hardly claim to be credited on any other matter.

The evidence of the servant girls is not of the most credible or creditable kind, to be sure; but it is supported by the confessions, or rather statements, of the relator to Birdsall; and it is not specifically contradicted by the relator, or on his behalf. This evidence shows him to be any thing but a fit custodian for these young children.

Further, it is in evidence that he remains indebted to a large amount, according to the showing of the assignment, and the proof that the assigned property, when properly applied, would not pay more than one-fifth of the debts enumerated in the schedule; and as against this, there is nothing but his general, unsupported statement that he is of ability to take proper care of these children. Any statement he may make requires corroboration ; and the fact that he is the keeper of a drinking-saloon in Chicago, is not the best kind of supporting evidence, any more than it is evidence that the place to which he would take the children is a proper one for their mental or moral training.

It is stated that the relator has now married a second wife, who has two children of her own, and is thus in a condition to take proper care of these young children. Of this wife, the court has this knowledge: that during the pendency of this proceeding, and while the law was the real custodian of the children, she did, in disregard of the action of the court, and to defy its control, by fraud and force possess herself of one of the children. This can hardly be deemed a very high recommendation of her as a fit guardian of their tender years, and certainly does not call upon the court to exercise its authority in her favor, she certainly having neither natural nor legal right to the custody of these children, and probably having no special affection for them. The court should hesitate long before committing them to her.

On the other hand, there seems no room to doubt that the respondent and his wife are really fond of the children, are treating them as if they were their own, and are willing, as well as able, to nurture them kindly and bring them up reputably. Indeed, there seems no motive, other than affection for the children, to induce this respondent to have kept them so long, to have assumed by the indentures the obligation to continue the care of them, and to defend this proceeding. And as the children are conceded to be attached to him "and his wife, and to be satisfied with their situation, and to prefer not to live with the relator, there seems no reason why the court should interfere with a custody lawfully acquired.

Ira D. Warren, for the relator, insisted—

I. That the indentures were void, because the children were not within the “Act to Provide for the Care and Instruction of Idle and Truant Children,” under which the commitment and indentures were made.

II. That the gift of the custody of Anna was'void as an agreement, and as a delegation of power it was revocable.

III. That the right of a father to the custody of the children is superior to that of any stranger.

Wakeman & Latting, for the defendants.

The children are remanded to the care and custody of the respondent.

The relator then obtained a writ of certiorari, to bring the matter before the court at general term for review.

By the Court.^*—Sutherland, J.

—We are all of the opinion that the proceedings before the justice on the habeas corpus, and his final order therein, as to the children, should be affirmed,—that no sufficient reasons have been shown for reversing the order which he made, in the exercise of a discretionary power.

' Order affirmed.

* Present, Leonard, P. J., Clerke and Sutherland, JJ.