70 N.Y.S. 72 | N.Y. App. Div. | 1901
This is an action for a divorce. Plaintiff in her complaint prayed for the custody of her stepson, Franklin M. Wood, now seven years old, the child of defendant by a former marriage. It appears that at the time the parties separated, plaintiff excluded defendant from his house and retained the child. Defendant subsequently applied to the Supreme Court for a writ of habeas corpus to regain possession of his son. The writ was made returnable on the 16th day of February, 1901. In the meantime plaintiff made a motion for counsel fees and alimony with the general prayer for further relief. This motion was returnable on the 9th day of February, 1901, at which time it was heard and decided. The order entered upon the decision of such motion required defendant to pay to plaintiff or her counsel fifty dollars counsel fees, and that he pay plaintiff during the pendency of this action ten dollars per week from the 1st day of February, 1901, “ for her support and that of the child Franklin M. Wood,” and the order further directed that said child should remain in the custody of Charles C. Myer, his grandfather, with the privilege to defendant of seeing his son at a certain hour each Sunday afternoon until the further order of the court. Pending the habeas corpus proceeding plaintiff had delivered
We are also of opinion that the court was not authorized to award the custody of the child to his grandfather, who was not a party to the proceeding. The moving papers did not apprise defendant of the application for such an order, and it does not appear that he consented to the order or otherwise waived any right in the premises. The Supreme Court, under its general chancery jurisdiction over infants, may, in a proper case, take them from their parents and deliver them to an institution or to a stranger, and may, when the interest of the children requires this to be done, restore them to either or both of the parents, but this power must be invoked by petition or by an application for a writ of habeas corpus and upon notice. (People ex rel. Keator v. Moss, 6 App. Div. 414; Matter of Knowack, 158 N. Y. 482; Davis v. Davis, 75 id. 221; People ex rel. Pruyne v. Walts, 122 id. 238; Matter of Welch, 74, id. 299 ; Wilcox v. Wilcox, 14 id. 575; People ex rel. Johnson v. Erbert, 17 Abb. Pr. 395.)
Plaintiff’s motion to dismiss the appeal upon the ground that defendant accepted the benefits of the order, in that he visited his child at the times permitted thereunder, is without merit. He had the absolute right to visit his child without the permission of the court. .
These views lead to the conclusion that the order appealed from should be reversed, without prejudice to plaintiff’s rights to renew the application for counsel fees and alimony.
All concurred.
Order reversed, without prejudice to plaintiff’s right to renew application for counsel fee and alimony.