
    The People of the State of New York ex rel. Leo Bishop, Respondent, v. Isaac C. Bishop, Appellant.
    First Department,
    February 8, 1907.
    Infants—habeas corpus to deprive" parent of custody of daughter — effect of daughter’s marriage.
    When a son applies for a writ of: habeas corpus to deprive his father of the custody of a daughter, who is alleged to be illegally restrained of her liberty and kept in a house where'the, father is alleged to be living in adultery, and on the return of the writ the daughter makes an affidavit that she is over eighteen years of age and has a happy home and is receiving an excellent education and desires to live with her father, and that her other relatives are. almost strangers to her and not congenial, and that she is not restrained of her liberty, and the charges against the father are unsupported by the evidence, the writ should be dismissed.
    In any event, the marriage of the daughter prior to the confirmation of a report granting the writ disposes of any question as to the daughter’s custody, and the court is without power to make a nunc pro tuno order depriving the father of her custody.
    Appeal by the defendant, Isaac C. Bishop, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 13th day of April, 1906, confirming the report of a referee and sustaining a writ of habeas corpus, and also from an order entered in said clerk’s office on the 13th day of June, 1906, denying the defendant’s motion to vacate the above order and dismiss the writ and amending said prior order.
    
      Charles O. Maas, for the appellant.
    
      Edward J. Newell, for the respondent.
   McLaughlin, J.:

The relator is the son of the appellant. In Hovember, 1904, the son presented a petition praying for a writ of habeas corpus, in which he stated that his sister Miriam was being illegally restrained of her liberty by her father. The alleged illegal restraint consistéd, in substance, in keeping Miriam, against her will, in a house in which the father Was alleged to be living in open adultery with one Sarah Hess. The mother of Miriam is, and for the past fourteen years has been, in an insane asylum, being hopelessly insane.

In the return to the petition for the writ the father denied that he was living with Sarah Hess in the manner alleged and asserted she was simply acting as his housekeeper, and he also denied that, the daughter Miriam was restrained of her liberty. Attached to and made, a part of the return was an affidavit of the daughter in which she stated she was over eighteen years of age'; that she had a happy home; that she was receiving an excellent education, being at the time a member of the junior class of the Girls’ Technical High School of the city of Hew York; that her social surroundings 'were pleasant and all that she desired; that she was of the age of discretion, and able to take care of herself; that it was her desire to live with her father; that the members of the families of her broth ers wére almost strangers to her; that none of them was congenial; that she was in no way restrained of her liberty; that it was her irrevocable desire to live with her father, and she prayed that her brother Leo. might not succeed in his efforts to take her away from her father, who had always been affectionate, loving and kind to her.

A traverse was filed to the return, in which the relator admitted the good qualities of the sister Miriam, and- alleged it was to prevent her being ruined that he desired to take her away from her father.

Upon the issue thus formed the matter was sent to a referee to take proof and make a report. The order of reference is dated February 6, 1905. The referee made a report in July following, in which he stated that Miriam was a very intelligent girl; that though upwards of eighteen years of age, and it was her wish to remain with her'father, nevertheless, she should be taken from him and given to the petitioner .Leo, her brother, or to her aunt, Sophie Bishop, as Miriam might elect, or in case she did not elect, then to such person as,the court might direct.

Subsequently a motion was made by the relator to confirm the report. of the referee, and on April 7,1906, the learned justice who made the order of reference inserted á memorandum in the New York Law Journal to the effect that the facts revealed bv the evidence convinced him that the welfare of Miriam required that the recommendations of the referee should be adopted and his report confirmed. On the day following, Miriam married one Julius Hirsch, of which fact the learned justice' referred to was informed on the eleventh of April, and before any order had been signed, notwithstanding which fact he, on the twelfth of April, made an order confirming the referee’s report sustaining the writ and awarding the custody of. Miriam- to either Leo or her aunt, or in case she did not elect which one she preferred to live with, then to such person as the court might direct, and restraining the father from seeing or receiving Miriam in the presence of Sarah Hess.

After this order had been made, the father moved to dismiss the proceeding xm- the ground that it had abated by the marriage of Miriam and also to vacate' the order of April twelfth. This motion was denied, but the-court amended the order of April twelfth so as to make the date nunc pro tuno as of April sixth, two days prior to the marriage of Miriam, and also striking from it the provision directing the production of Miriam in court; and directing the appointment-of a guardian. In other respects the order was left as originally made. "It is from both of these orders that the present appeal is taken.

There never was any occasion for the reference. Here was a girl upwards of eighteen years .of age, bright and intelligent. Her mother was in an insane asylum... She had, from infancy, lived with and been cared for by the father. Her surroundings, according to her own affidavit, were pleasant and all that she desired. She was receiving an excellent education and being cared for, so far as the return and her own affidavit show, in a proper way. She did not desire to live with her brother, the relator, or any - of her relatives except her father. Indeed, so far as appears,, none of her relatives, except her father, had been at all .solicitous as to her care,after the mother was committed to an insane asylum until this proceeding was instituted. The fact was,not disputed that she had been well brought up arid was well educated for -a girl of her age, and simply because the father was unfortunate enough to have an insane wife, which necessitated, under the circumstances,- if he kept house, his having a housekeeper, was no reason why his daughter should be taken from him because 'someone might imagine (even though it b'u his own son) that his relations with the housekeeper were meretricious. The proceeding, therefore, should have been dismissed upon the return and the papers annexed to it. The motion to confirm the referee’s report should have been denied, arid the proceeding dismissed upon the evidence taken by him. This, evidence falls far short of establishing that the relations existing between the father and housekeeper were meretricious, or that the morals of the daughter were in any way endangered by living with the father; on the contrary, the uncontradicted evidence- shows that the daughter Miriam was then over twenty years- of age;' that' she had received a good education and is. bright and intelligent; that she was not restrained of' her liberty and did not wish to live with her brother Leo or her aunt, or with any one except -her father, who had always looked after her carefully and treated her with great kindne.ss. That the court, under such circumstances, should prevent her living with the father and compel her to live with her brother or aunt or some person whom the court might designate is a proposition novel, if not startling. And equally novel is the proposition that the court, after it had been advised of the fact that Miriam had married, should make an order nimc pro Umo as of adate prior to the marriage, confirming the referee’s report and restraining the father from seeing the daughter in the presence of Sarah Hess, even though the husband should insist upon it, or should insist upon living in that household. The marriage of Miriam would seem to have disposed of any question which might under.any circumstances have theretofore existed as to her custody. (Brown v. Rainor, 108 N. C. 204.) Whether it did or not, upon the evidence taken by the referee, the motion to confirm his report should have been denied.

The orders appealed from, therefore, should be reversed, with ten dollars costs and disbursements, the motion to confirm the referee’s report denied, and the proceeding dismissed, with ten dollars costs.

Patteeson, P. J., Ingraham, Laughlin and Houghton, JJ., concurred. . '

Orders reversed, with ten dollars costs and disbursements, motion to confirm referee’s report denied and proceeding dismissed, with ten dollars costs. Order filed.  