221 A.D. 86 | N.Y. App. Div. | 1927
This is a litigation between a brother and sister for the custody of a child of the brother. The child is now eleven years of age. The father, Frederick V. Strohsahl, is a resident of the State of New Jersey. In the fall of 1917 he suffered from an attack of dementia melancholia and was duly committed to a New Jersey State hospital for the insane under an act substantially s’milar to the New York State Insanity Law. Upon such commitment, the wife of Frederick V. Strohsahl went to live with her parents, taking with her the two children of said Frederick V. Strohsahl, Vincent and his younger brother, Preston. The wife died while at her mother’s home and the two children continued to reside with their grandparents. In the fall of 1921 Katherine Strohsahl, a sister of Frederick V. Strohsahl, learned that the boy Vincent was suffering from diseased tonsils and adenoids and that an operation was necessary. She volunteered to take the boy and have the operation performed at her expense. To this the grandparents consented and the said Katherine Strohsahl took the boy into her care and custody, where he has ever since remained, residing with said Katherine Strohsahl in an apartment
The decree referred to in this allegation of the petition is called a final order of commitment and recites that certified copies of an application made by Henry Strohsahl and the certificate of two physicians certifying that Frederick V. Strohsahl is insane and that his welfare and the safety of others require that he be temporarily restrained until judicial inquiry can be had, having been transmitted to Judge Zabbiskie by the medical director of the State hospital at Greystone Park; and Judge Zabbiskie having on the presentation of the original application made an order of temporary commitment to the State hospital at Greystone Park, and having directed the institution of an inquiry and that proofs be taken as to the sanity and legal settlement of said alleged insane person to be held on the twenty-ninth of May, and having on the same day issued a capias to a peace officer directing him to take and commit the said Frederick V. Strohsahl, which capias has been duly returned showing that said Frederick V. Strohsahl has been temporarily committed to the said State hospital, and it appearing by proofs of service that legal notice of the time and place of this inquiry has
“ I do, therefore, on this 19th day of June, 1918, order, adjudge and decree that the said Frederick V. Strohsahl is an insane person and that he be confined in the New Jersey State Hospital at Grey-stone Park until restored to his right mind and until the further order of a court of competent jurisdiction and while so confined that he be supported and maintained at the expense of Henry Strohsahl, brother of the patient.
“(Signed) JOHN B. ZABRISKIE,
“ Judge Court of Common Pleas of the County of Bergen
“ Recorded this 10th day of July, 1918
“ George Van Buskirk
“ County Clerk.”
The consent of and notice to the petitioner, as surviving parent, was dispensed with under the provisions of section 111 of the Domestic Relations Law, which then provided that “ the consent of a parent * * * adjudged to be insane * * * is unnecessary.” When the hearing came up in the Children’s Court, in view of the adoption order, the respondent retained the child. There was no way at that time for Frederick V. Strohsahl to have an adjudication that he had completely recovered. Subsequently the Legislature of New Jersey passed an act permitting one in such circumstances to have himself judicially declared sane, which the petitioner did almost immediately following the passage of the act, namely, on July 2, 1924. In August, 1924, this proceeding was commenced by the petitioner for the issuance of a writ of
The first question, therefore, which is presented upon this appeal is whether habeas corpus is the proper remedy in view of the order of adoption.
If the order of the surrogate allowing and confirming the adoption was made without compliance with the statutory requirements, then it follows that the adoption may be disregarded in this proceeding. At the time of the adoption, section 111 of the Domestic Relations Law (as amd. by Laws of 1922, chap. 628) governed. It provided in part as follows:
“ § 111. Whose consent necessary. Consent to adoption is necessary as follows: * * *
“ 3. Of the parents or surviving parent of a legitimate child; and of the mother of an illegitimate child; * * * but the consent of a parent who has abandoned the child, or is deprived of civil rights, or divorced because of his or her adultery or cruelty, or adjudged to be insane, or to be an habitual drunkard, or judicially deprived of the custody of the child on account of cruelty or neglect, is unnecessary; excepting, however, that where such parents are divorced because of his or her adultery or cruelty, notice shall be given to both the parents personally or in such manner as may be . directed by a judge of a court of competent jurisdiction.” (Italics are the writer’s.)
The consent of the petitioner not having been obtained, the query is whether this was excused by the words of the statute “ but the consent of a parent * * * adjudged to be • insane
The use of the same language in two statutes covering different aspects of one subject would seem to indicate a legislative intent to have the same language convey the same idea. Any ambiguity, however, which at the time of the making of the order of adoption existed as to the precise meaning intended by the Legislature to be given to the phrase “ adjudged to be insane,” was subsequently removed by the amendment in 1924 (Chap. 323) of section 111 of the Domestic Relations Law so as to dispense with the consent of a parent “ who is insane as defined by the Insanity Law or judicially declared incompetent or who is a mental defective as defined by the Mental Deficiency Law.” (See, also, Mental Hygiene Law [Laws of 1927, chap. 426], § 2, subd. 3; Id. § 70 et seq.) It thus appears ‘ to have been the legislative intention to use the term “ adjudged to be insane ” in its broader sense and expressly to include not only a determination upon an inquisition de lunático inquirendo, but also a person finally committed upon an order of a judge or court adjudging such person to be insane. As we construe the amendment to the section, it is not an enlargement of the section, but rather a clarification of what was intended to be within the meaning of the term “ adjudged
It thus appears that the order of adoption was not defective for failure to obtain the consent of or give notice to the petitioner. The order was made by the surrogate pursuant to clear and unquestioned authority and recites all the necessary jurisdictional facts. By section 1254 of the Civil Practice Act it is provided that a court or judge, upon the return of the writ of habeas corpus, “ shall not inquire into the legality or justice of any mandate, judgment, decree or final order.” The writ of habeas corpus brings up for review the question whether there was colorable jurisdiction to grant the order of detention.' As was said by Van Brunt, P. J., in People ex rel. Sampson v. N. Y. C. Protectory (93 App. Div. 196, 197): “As the writ of habeas corpus is simply a writ of right, the only question brought up is the fact of the commitment.” In People ex rel. Price v. Hayes (151 App. Div. 561, 563, 564) it was said by Woodward, J.: “ Persons committed or detained by virtue of the final judgment or decree of any competent tribunal of civil or criminal jurisdiction, or by virtue of any execution issued upon such judgment or decree, are expressly excluded from the benefit of the writ. No inquiry into the ‘ legality or justice ’ oí any mandate is permitted, except as those terms include the questions of jurisdiction or power. (Code Civ. Proc. § 2032; People ex rel. Tweed v. Liscomb, 60 N. Y. 559, 569; People ex rel. Farrington v. Mensching, 187 id. 8, 27; People ex rel. Scharff v. Frost, 198 id. 110, 115; People ex rel. Young v. Stout, 81 Hun, 336; affd., 144 N. Y. 699; People ex rel. Patrick v. Frost, 133 App. Div. 179, 185.)” When there is jurisdiction to make an order, it cannot be attacked collaterally in a habeas corpus proceeding. As was said in People ex rel. Price v. Hayes (supra): “ Habeas corpus is not a writ of review, and errors of law and mere irregularities or errors of judg
It follows, therefore, that the order of adoption, pursuant to which the respondent had the custody of the infant, was a complete answer to the writ of habeas corpus, and the writ should have been dismissed. Where there exists a valid order of adoption, a proceeding looking to its abrogation must be brought for that purpose..
If we approach a decision of the question here presented from another angle, we reach the same result. Assume that the order of the surrogate allowing adoption was void for want of jurisdiction because made without the consent of or notice to the surviving parent, and we may dispose of the matter as a question of fact. The issue being, as it must, the welfare of the child, we are confronted with certain facts which seem controlling. Here is a delicate young child who has had two operations for mastoid. He has lived for six years with an aunt and now lives with her in a modern seven-room apartment having all the physical comforts and attention which a doting maiden lady can bestow upon him. We are asked to order his removal in winter as well as summer to a bungalow which is heated only by a coal range in the kitchen and a hot water heater used for chicken incubators in the cellar, but from which no pipes or other means of radiation run to the bungalow above. There is also a portable oil stove. It is true that the bungalow is only one story, measuring in all sixteen feet by thirty-six feet, and has but three rooms, a combination kitchen and living room and two bedrooms connected by doors without any hallway, so that a kitchen range would be more effective than if the house were larger; but on the other hand, the construction of the house is only of thin chestnut boards covered with building paper on the outside and lined on the inside with Compo boards, and there is only an outside toilet which is necessarily without heat. In addition, there is no hot water, there being only one sink and faucet in the combination kitchen and living room, furnishing only cold water. There is no bath. Petitioner does all his own cooking and conducts his farming and road store business practically alone except for the occasional help of a girl or woman and a couple of small boys and occasionally his sister and such work as the younger son, Preston, now nine years of age, is able to do. We realize that adequate strength and growth, physically as well as mentally, can be attained only through effort, and that necessity furnishes to most natures solely the stimulus which is
The orders appealed from should be reversed, with ten dollars costs and disbursements, and the writ dismissed, with costs and disbursements.
Dowling, P. J., Merrell, McAvoy and Proskauer, JJ., concur.
Order entered October 23, 1926, reversed, with ten dollars costs and disbursements, and the writ dismissed, with costs and disbursements.