22 N.Y.S. 881 | N.Y. Sup. Ct. | 1893
Mabel was eight years of age on the 31st day of March last. On the 15th day of June, 1885, she was placed in the
The Laws of 1884, c. 438, § 5, provides that any corporation specified in the first section of the act may bind out an indigent or pauper child which shall have been absolutely surrendered to the care and custody of the corporation, in pursuance of the provisions of the first section of the act, or which shall have been placed in the corporation as a pauper, in pursuance of the second provision of the act, or shall have been left to the care „of the corporation, with no provisions by the parent, relative, or guardian for its support, for a period of one year. The first.section of the act provides that the guardianship of the person and the custody of an indigent child may be committed to any incorporated orphan asylum, or other institution incorporated for the care of orphan, friendless, or destitute children, by an instrument in writing signed by the parents of such child, or, if both parents be dead, and there is no legal guardian of the child, by the mayor of the city or the county judge of the county in which such asylum shall be located, upon such terms, for such time, and subject to such conditions as may be agreed upon by the parties to such written instrument. The second section of the act makes provision for the commitment of such child or children to an asylum by the superintendent or over
Upon the trial the record of conviction of the defendant James A. Paschal was read in evidence, under his objection. It is now claimed that it was not proper evidence against him in this proceeding. He, however, subsequently went upon the stand as a witness in his own behalf, and gave material testimony. The record of his conviction then became competent evidence as bearing upon his credibility. Code Civil Proc. § 832. The error, if any, was by that act cured.
It is also contended that the relator should have proceeded under the Laws of 1884, c. 438, § 12, instead of by habeas corpus. That section -provides for an application to the surrogate’s court of the county in which the foster parent resides for a cancellation of the agreement of adoption, and for the termination of the relation of parent and child, on the ground of cruelty, misusage, refusal of necessary provisions or clothing, or inability to support and maintain or educate the child, or of any violation of duty on the part of such foster parent towards such child. If the provisions of this statute are broad enough to afford relief on the ground that the foster parents are immoral, and improper persons to have the custody of a child, it but affords a concurrent remedy; for the statute does not take from the supreme court any of its ancient powers or jurisdiction under a writ of habeas corpus.
The order should be affirmed, with costs. All concur.