
    Matter of the Abrogation of Adoption of Matilda Trimm (otherwise known as Katie Hoefle).
    (Surrogate’s- Court, Erie County,
    February, 1900.)
    1. Infant — Abrogation of adoption.
    
      Semble, that an abrogation of an adoption, theretofore made under the Domestic Eelations Law (Laws 1896, eh. 272), can only be effected by proceeding before the county judge or the surrogate, and that the Supreme Court has no power in regard to abrogation.
    Although the County Court and the Surrogate’s Court have concurrent jurisdiction in such a matter, the power to abrogate an order of adoption rests solely with whichever court granted the order.
    2. Same — Conflict of jurisdiction.
    
      Semble, that where the surrogate, deciding that the foster-parents of an adopted child are unfit persons to have its care and custody, abrogates the order of adoption, and no appeal is taken from the order of abrogation, the county judge has no power subsequently to make an order adopting the child to the same foster-parents as before.
    Proceeding to set aside an order of adoption made herein by the county judge of Erie county on the ground that the foster-parents are not proper persons to have the care and custody of the-child.
    Leroy S. Andrus (Simon Fleischmann, of counsel), for petitioner Elizabeth C. Thomas.
    John M. Hull, for respondent guardians, John H. Hoefle and Barbara C. Hoefle.
   Marcus, S.

This is a proceeding to set aside an order of adoption, made herein on the 8th day of February, 1898, by the county judge'of Erie county, on the ground that the foster-parents are not proper persons to have the care and custody of the child.

It appears without controversy that the child was surrendered to the superintendent of the poor of Erie county in December, 1892, by a written instrument, and was thereafter placed in the German Roman Catholic Orphan Asylum until a permanent home could be provided. It further appears that the child remained in that institution from December, 1892, to September, 1893, when the child was taken from that institution and given by the superintendent of the. poor of Erie county to John FT. and Barbara C. Hoefle. It is conceded that the child is without property of any kind or nature whatsoever. In 1897 a proceeding was instituted in the Erie County Court to set aside the instrument of surrender to the superintendent of the poor on the ground that the father of the infant was intoxicated at the time of the signing of said instrument. This proceeding resulted in a dismissal of the petition. Thereafter another proceeding was begun in the Surrogate’s Court of Erie county to set aside the order of adoption and mutual relation created thereby on the statutory grounds of cruel and inhuman treatment, which resulted in a decree being made by the Surrogate’s Court on January 11, 1898, abrogating the order of adoption. Ho disposition of the child was made in that decree, but the infant was, as a matter of law, restored to its original status, the superintendent of the poor becoming again its legal protector, or, to speak more accurately, the status of such child became the same as if no proceedings had been had for the adoption thereof. Immediately on the making of that decree, a writ of habeas corpus issued out of the Supreme Court returnable forthwith, and the child was produced in court and allowed to remain with its foster-parents pending the further disposition of said proceeding.

On the fifth of February an order was made by which the petition for the writ of habeas corpus was dismissed and the custody, care and control of said infant was ordered to remain in and with the superintendent of the poor of Erie county.

It will be observed that this order in no way disturbed the decree of the Surrogate’s Court theretofore made on the 11th of January, 1898, since by force of the surrogate’s decree the superintendent of the poor became entitled to the custody and care of said infant.

Subsequently thereto and on the 8th day of February, 1898, the present order of adoption upon which these proceedings arise was made by the county judge of Erie county, which resulted in the County Court again giving, in adoption to the same parties, this infant upon the consent of the superintendent of the poor and the consent of the foster-parents, and this notwithstanding the decree of this court theretofore made which had in no way been disturbed by appeal or otherwise, and so remains.

Erom the order of adoption made by the County Court above mentioned, an appeal was taken to the Appellate Division of the Supreme Court, and the same was in all things confirmed without opinion. Another writ of habeas corpus issued out of the Supreme Court, which resulted in an order being made by which the petition for the writ was dismissed, and the petitioners sent to the Surrogate’s Court for further relief.

Before the final hearing in this proceeding a writ of prohibition was served restraining me from in any manner proceeding with the same. This writ was set aside and the matter went on to a conclusion.

It should be remembered that no appeal was ever taken from the decree of the Surrogate’s Court and the force of that judgment remains unimpaired except in so far as it was practically reversed and set aside by the County Court in its order of adoption made in February, 1898.

The circuit having been completed, a fresh start is again taken in this court, and it must be admitted that if the proceedings are not unique they are at least novel.

Mo question of jurisdiction was raised in the first proceeding in this court, but since it is now contended that the Surrogate’s Court has no jurisdiction on the admitted facts of the case, the matter of jurisdiction is treated as an original question.

■The claim of lack of jurisdiction is made by the relator upon this hearing by reason of the fact that this child was in no way adopted from an orphan asylum or charitable institution,” as defined by chapter 212 of the Laws of 1896, under which these proceedings arise, and from which it is urged that the Legislature intended to give the surrogate jurisdiction in proceedings of this character only when the child had been actually adopted from a charitable institution or orphan asylum, and not by the act of the superintendent of the poor himself on the one hand and the claim of the petitioner on the other that this court has jurisdiction; that the Legislature, in making the Domestic Relations Law, clearly intended to codify existing prior laws which, should apply to all cases provided by the statutes of 1884 giving the tiounty judge co-ordinate jurisdiction with the Surrogate’s Court over proceedings relating to the adoption of infants and the abrogation of adoption; that the statute is remedial and should be liberally construed and be understood in the sense which best harmonizes with the subject of the enactment and the object which the Legislature had in view as well as with reference to the object to be accomplished by the act; that the superintendent of the poor is within the contemplation of law a charitable institution, at least to the extent which should give this court jurisdiction; that no violence is done to the intent of the statute by characterizing such officer as a “ corporation ” or an “ institution ”; that every incident attached to the office affords such a conclusion.

Without passing on the question, I am impressed with the fact that unless the officers designated in the statute can act in this proceeding, there can be no remedy or relief. The proceeding to abrogate adoption can only be effected by the proceeding instituted, and only by the court and officers provided by law, to-wit, the county judge of by the Surrogate’s Court. While it is true that the Supreme Court has plenary power over the custody and ■control of infants even to the extent of taking such infant from the custody and control of natural parents, yet it can no more abrogate an adoption than it can decree that the laws of inheritance should be set aside.

It follows, therefore, that the proceedings of the Supreme Court upon the writs of habeas corpus were only directed h> the question of who was the proper custodian of the infant, and had no bearing on the question directly under discussion. There is no doubt but that court may exercise the very widest range of authority over the person and property of an infant, yet it seems to have no power under the Domestic Relations Law to abrogate an adoption, or in the words of the former statute “ cancel the agreement of adoption.” Such power is placed in the county, judge and in the Surrogate’s Court and until the adoption is .abrogated by one of these two tribunals the contract of adoption carrying with it parental and filial relations with property rights appertaining to those relations, remains in force, wholly undisturbable by anything any other court can do.

It is interesting to inquire what effect the former decree made by this court has upon this proceeding. It is somewhat anomalous. When the decree of the Surrogate’s Court was made, the child, by operation of law, was placed in its former status, which in the words of the statute “ should be the same as if no proceeding had been had for the adoption thereon.” The decree being unreversed and not even appealed from, stands it would seem as an adjudication between those parties, not only as to its final effect but also as to all material questions involved in its validity.

My views as to the unfitness of the foster-parents and of their cruel and inhuman conduct, and to their being improper persons to have the custody and control of this child, are expressed in the decree of January, 1898, and have never changed. These conditions were shown to my satisfaction to exist at that time, and from the precocious untruthfulness of the infant herself upon this proceeding as well as her unnatural demeanor inclines me to the belief that their influence still continues. The further fact that these foster-parents felt obliged to send this infant out of their own power, control and restraint to practically restricting influences confirms my original belief upon this question.

Proceedings have been brought for abrogation, adoption and to set aside original surrenders in this matter and have been constantly before the courts for upwards of three years.

The result of concurrent jurisdiction has been exceedingly harmful, at least to the welfare of this infant. The proceedings in one form or another in different courts for the past years has made life almost a burden to the foster-parents as well as this infant. The abrogation of the decree of the Surrogate’s Court being almost immediately followed by the readoption to the same foster-parents in the County Court, again followed by another proceeding in this court for abrogation, leaves neither tribunal with any assurance that a judgment rendered after careful deliberation will ever be final.

I have determined to dispose of the question of jurisdiction upon a view presented by neither party to this proceeding.

This infant was adopted in pursuance of the provisions of chapter 272 of the Laws of 1896, and though the jurisdiction of the county judge and Surrogate’s Court is concurrent under this act, I am nevertheless of opinion that the power to abrogate an order of adoption does not rest in a court other than that which granted it; nor, do I believe an order of adoption can be granted after another court of concurrent jurisdiction has judicially determined between the same parties, that they are unfit to retain the privileges and rights following such a contract by abrogating the same.

While the law always requires the sanction.of a court to create or destroy such status, it never could have been intended that the county judge should sit as a court of appeals on the judgment of the surrogate; or that the Surrogate’s Court should sit in that capacity on the judgment of the county judge. Any other Hew would result in the possibility of an endless chain of adoption and abrogation between the same parties. For after the abrogation of an order of adoption granted by one court as a conclusion of deliberate judgment founded upon substantial evidence to support it, an order of adoption is made by a court of concurrent jurisdiction, as in this case,, to the identical parties from whom such contract, and the rights and privileges hereunder were cancelled, the abrogation is immediately nullified in fact, and-the original status restored by the judgment of another court to whom concurrent jurisdiction is given by the statute. Surely, there is no express power in the statute for'such review. The evil of such a construction is apparent in this case, and seemingly gives to a court, at least in effect, powers that, never could have been intended by the Legislature, and which belong to appellate courts. The simple order of adoption made by one court after abrogation by another between the same parties, completely nullifies and makes void the judgment of one court by another of co-ordinate jurisdiction, giving it in effect powers exercised only by appellate tribunals, and so completely destroying and doing Holence to the intent of the statute in question.

The petitioners must, therefore, seek their relief in that court from which the order of adoption issued.

I can only express my regret that the question of jurisdiction was not argued on the first hearing. It was assumed by all parties. "Upon the merits of the controversy there is nothing that changes my views as originally expressed in the decree rendered in January, 1898, after carefully weighing the testimony of thirty witnesses.

I regret again to add uncertainty to what seems to be a determined effort to establish right as differently viewed by the parties to this proceeding, and would gladly direct such judgment as would bring the proceedings to a final determination for the advantage of all concerned, though I believe that to be quite impossible, until every legal remedy is -exhausted. The questions raised not only are important but novel and intricate and can only be settled definitely and finally by a court of highest resort.

Petition dismissed, without costs.  