
    The People of the State of New York ex rel. Daniel J. McKinney, Respondent, v. Frances A. Stinson, Appellant, Impleaded with Julia Rinteln.
    
      Habeas corpus — a child nominally in the custody of her gumdian by adoption, but' really in that of a divorced woman living in adultery.
    
    A traverse to a return made to a writ of habeas corpus, and not denied, alleged that a child four years old, who had been duly adopted under chapter 830 of the Laws of 1873, was not really in the custody of its statutory guardian, but in that of the daughter of the guardian, who, after being divorced because of her adultery, was still living with her paramour.
    
      Held, that the court was justified in removing the child from the custody of the statutory guardian and putting it in that of its nearest relative, notwithstanding the fact that this relative had previously consented to the adoption of the child by the statutory guardian;
    That should it subsequently be made to appear to the court that the guardian had any defense to the matters stated in the traverse, the present determination of the matter would not prevent the statutory guardian from again applying to the court to recover the custody of the child.
    Appeal by the defendant, Frances A. Stinson, 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 27th day of May, 1896, awarding the custody of an infant child to the relator Daniel McKinney.
    
      John F. Clarke, for the appellant.
    
      William Sullivan, for the respondent.
   Goodrich, P. J.:

The relator is the maternal uncle of Sadie Stinson, a child four years of age. In 1892 the Sisters of St. Joseph, who had had the custody of the child since the death of its mother and the absence of the father, confided the child to the custody of Mrs. Rinteln, the daughter of the appellant. In August, 1895, a judgment of divorce, on the ground of adultery, was entered against Mrs. Rinteln, and thereafter, in November, proceedings were taken, by Mrs. Stinson, ■the appellant, under the Adoption Statute of 1873 (Chap. 830), before the county judge of Kings county, for an order authorizing her to adopt the child. In that proceeding the relator, who described himself as the nearest relative of the child, as well as two uncles of the infant on the paternal side, consented to and approved the adoption of the child by Mrs. Stinson, and by order of Judge Moore the infant became the adopted child of Mrs. Stinson, and since that time has resided with her.- All of these proceedings occurred over three months after the judgment of divorce, at which time it may be presumed that the relator had knowledge of the. same, and of the fact that the divorce was granted on the ground of the adultery of Mrs. Rinteln.

In April, 1896, the relator obtained a writ of habeas corpus directing Mrs.- Stinson to produce the child. Mrs. Stinson filed her return setting out the adoption proceedings, and especially the renunciation of the relator McKinney. The relator traversed the- return, denying the jurisdiction of the county judge in the adoption proceedings, and alleging that the adoption was obtained by false allegations, and “ That since that time, however, and for some time previous thereto, the said child is in company or under tlie control of said Julia Rinteln (and not Frances A. Stinson), who has continued the same immoral conduct, as your petitioner is informed, up to the present time.” It further alleges that Mrs. Rinteln is still living in open adultery with- her paramour, and that the custody of Mrs. Stinson is really a cover for the control of the child by Mrs. Rinteln.

It appears by the order made in this proceeding that Mrs. Stinson applied for a hearing and decision on the papers without taking ■ testimony, and requested that no testimony should be taken. The argument was, therefore, had as upon a demurrer to pleadings, and the learned justice, in his opinion, stated that he was mailed upon to, and did, make the decision solely upon the papers. It follows that with the legal admission of the truth of the allegations of the answer to the return, the learned justice could do nothing else than order a change of the custody of the child.

It does not follow, however, that this custody must be continued. If, upon a trial, it shall appear that the allegation as to the control of the child by Mrs. Bintelu is not true, and that it is for the best interests of the child that it should remain in the custody of Mrs. Stinson under the order of adoption made by the county judge, the child can-be taken from the relator and given back to Mrs. Stinson.

The Court of Appeals in the case of The People ex rel. Brush v. Brown (103 N. Y. 684) virtually held that the General Term, in reversing an order of the Special Term dismissing a writ of habeas corpus, had power to direct a new hearing on the merits at Special Term, and that this was the effect of such reversal. No harm, therefore, can result from the affirmance of the order of the Special Term, as a new hearing on the issues raised can be had, where all the facts can be elicited and the proper judgment be entered.

From the statements made on the argument it would appear that the counsel for Mrs. Stinson fell into an error and made his admissions or'stipulations broader than he intended. If this be the fact, and she has any defense on the facts to the allegations contained in the traverse, she may apply to Special Term for leave to reopen the case for a hearing on the evidence. We have no reason to believe that, on a proper application, such privilege would be denied, for in this class of cases especially the determination must depend on the particular facts of each case.

The order is, therefore, affirmed, without costs, with leave to the defendant to apply to Special Term for a hearing on the facts.

All concurred.

Order affirmed, with leave to defendant to apply to the Special Term for a hearing on the facts.  