
    The People of the State of New York ex rel. Charles Bell Barker, Respondent, v. Adelia Gertrude Stringer, Appellant.
    
      Children — order designating institution to take custody of illegitimate child.
    
    Appeal from an order denying a motion to have the court designate an institution to care for, educate and maintain an illegitimate child.
   McLaughlin, J.:

This is an appeal from-an order which denied amotion made by the appellant to have-the court-designate the Star of the Sea Academy, a Roman Catholic institution, as one in which to place an illegitimate child, and to compel the relator to give security for the payment of" the amount charged by such institution for the- care, maintenance and education of such child while . there. The papers used upon this motion, resulting in the order here appealed " from, are the same as those used upon a motion to punish the relator for contempt, which was denied and the order appealed from affirmed and decided herewith, with the exception that here papers are presented showing that the institution which the appellant sought to have the court designate as one in which to place the infant was a Catholic institution of the ’character specified in the previous order of the court, and that the authorities in charge of such institution - "had consented to receive the child'. Under the previous order of the court the Child was directed to be placed in the Convent of the Sacred Heart, or in such other Roman Catholic institution as the court might designate. The moving papers show, and the fact is not. denied in the answering papers thereto, that on or about the 19th of April, 1905, a bill was introduced in the Legislature of the State to legitimize the child, which- Was passed and subsequently vetoed by the Governor; that this effort to legitimize the child attracted much attention, by reason of which the appellant had been unable to get the child into any Roman Catholic institution; and that she, therefore, asked the court to designate, by its-order, the institution above referred to. The motion was denied and she has appealed. I think the motion should have been granted. The dispute between ■ the parties -as to the right to the custody of the child .was finally settled by their submitting themselves to the jurisdiction-of ,the court, asking it to direct that the child be placed in'the-Convent of the Sacred Heart,- or some other Roman Catholic institution to "be designated by the court. The papers show that th<3 mother of the child is unable to. get her into the Convent of the Sacred Heart, for the reason above stated and ho reason is suggested, upon that fact being presented to the court, why.it should not designate some -other institution. The papers used upon the motion 'showed that -the Star of the Sea Academy is,a Roman Catholic institution of the kind and character specified in the’order. Indeed, the- relator ' makes no obiection to the institution. The consent of the institution to-receive the child is presented. There seems to be no" good reason, therefore, whv the court .should not have designated that institution as one proper to receive, care for, educate and maintain the child. The propriety or advisability of the court malting the original order requiring the child to be placed in an institution of this character is not now before us. That order was made with the approval of the relator and upon the motion of his counsel. Having asked the court to exercise its jurisdiction as specified in that order, and it having done so, he cannot be heard to say that the order cannot be enforced. The interest of the child is at least equal, if not paramount, .to his interest. The appellant, however, was not entitled to have him give security for the payment of the charge made by such institution while the child remains there. The order requires him to pay for the care, education and maintenance of the child while she there remains, and if he does not comply with the order by doing so, then he may be punished for contempt, but the presumption is that such proceeding will be unnecessary; that the court having designated an institution in which to put the child, and the appellant having placed the child therein, in pursuance of such order, the relator will then comply with the previous order of the court. The order appealed from, therefore, must be reversed, with ten dollars costs and disbursements, and the motion granted to the extent herein indicated, with ten dollars costs. O’Brien, P. J., Ingraham, Clarke and Houghton, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted to the extent indicated in opinion, with ten dollars costs.  