128 Misc. 513 | N.Y. Sup. Ct. | 1927
The relator was arrested upon a warrant issued on December 18, 1926, out of the Children’s Court of Broome county, upon a charge of non-support and abandonment of his wife and infant child. Thereupon relator obtained a writ of habeas corpus alleging that his arrest under said warrant was illegal in that the Children’s Court has no jurisdiction in the premises by reason of the fact that there was then and is now pending in the Supreme Court, Broome county, an action for a separation between the relator and his said wife, in which action a motion of the said wife for counsel fees and alimony has been argued and is now pending undecided.
The relator contends that the Supreme Court having obtained jurisdiction of the person of the defendant and of the subject-matter of the controversy, the Children’s Court had no jurisdiction and that any process issued by the Children’s Court relative thereto would be null, void and illegal. I think this contention cannot be upheld. When the proper facts were presented to the Children’s Court it obtained jurisdiction under the statute and lawfully issued its process, presumably without any knowledge or information of the pending proceeding in the Supreme Court. That jurisdiction the Children’s Court had full authority to exercise subject to the superior jurisdiction of the Supreme Court. Its jurisdiction did not depend upon extrinsic facts of which it may have had no knowledge. It seems to me the relator had two courses of action available after the service of the warrant upon him. He could present to the Children’s Court the facts showing the pendency of the action in the Supreme Court and it is to be assumed that upon such facts being presented the judge of the Children’s Court would make suitable disposition of the case in view of these facts. If a satisfactory disposition should not be made by the Children’s Court, or in the first instance without application to the Children’s Court, the relator could apply to the Supreme Court showing the facts and thereupon the Supreme Court could make suitable disposition of the matter, and, if necessary, stay proceedings in the Children’s Court or remit the parties to the Children’s Court for further consideration and disposition of the matter. It is true that the Supreme Court has superior authority, but the Children’s Court certainly has jurisdiction until such time as the Supreme Court on proper application shall order a stay of proceedings in the
The relator is not without redress herein because of any conflict of jurisdiction, but he has not followed the proper procedure. He seeks here to lie discharged from custody because of his contention that the warrant under which he was arrested was illegal and void, but the Children’s Court had full authority to issue the warrant and it is valid and binding. The relator should make application either to the Children’s Court or to this court, showing the facts relative to the conflict of jurisdiction, and ask for relief, and upon such application no doubt a proper disposition of the matter will be made, not because the warrant is illegal, but because of such additional facts entitling him to relief.
The application of the.relator is, therefore, dismissed, and he is ordered remanded into, the custody of the sheriff under said warrant of arrest.