
    In the Matter of the Application of John H. Tierney, Appellant, to Recover Possession of His Child. Eleanor Tierney, Respondent.
    Second Department,
    November 20, 1908.
    Parent and child'—custody as between parents—chancery powers of court.
    The Supreme Court in its chancery powers may entertain a proceeding by a parent to obtain the custody óf a child instituted by petition.
    In such proceeding the controlling question is the welfare of the child.
    Where by a prior decree it has beeu established that the mother of the child was not justified in abandoning her husband, and had not conducted herself as a dutiful wife and mother, and it appears that she is without means to support the child, who is now living with an aunt, etc., the" father should be awarded custody. ■ ' -
    Appeal by the petitioner, John H. Tierney, from an order of the Supreme Court, made at the' Kings County Special Term and entered in the office of the clerk of the county of Kings on the 10th day of June, 1908, denying the petitioner’s application to recover possession of his child.
    
      George D. Beattys, for the appellant. .
    
      T. J. Moissen [George Gru with him on the brief], for the respondent.
   Miller, J.:

• This is a proceeding instituted by the petition of a father to obtain the custody of his daughter, a child of seven , years. The petition was opposed by the mother, who now has the custody of the child.

It was proper to invoke the chancery power of the court by petition. ( Wilcox v. Wilcox, 14 N. Y. 575; Matter of Knowack, 158 id. 482.)

The controlling question is the welfare of the child. The record discloses that the father and mother are living separate and apart "from each other, and that the mother abandoned the home provided by the husband and brought an action for separation on the the ground of cruel and inhuman treatment. In that action the (court dismissed the complaint on the merits and found that the defendant had not been guilty of any' of the acts charged, and that said plaintiff has not during all the time of the said marriage with defendant always conducted herself as a dutiful wife and mother.”

Thus we approach the consideration of. the question before us with the established fact .that the mother, without excuse and without being free from fault herself, abandoned the home provided by the husband.

It further appears that the mother is without means of supporting the child, who is now living- with an aunt, a sister of the mother. The record before us contains a letter written by said aunt to the sister of the child whose custody is in dispute. That letter, in Connection with the other .circumstances disclosed, convinces us that the welfare of the child requires that she be removed from her present surroundings.

The order should be reversed and the petition granted.

Woodward, Jenks, Hooker and Rich, JJ., concurred.

Order reversed, without costs, and petition granted, without costs.  