
    The People of the State of New York ex rel. Cornelius Byrne, Respondent, v. Albert F. Brugman and Frank Brugman, Appellants.
    
      Pan'ent and child—the surviving parent has the custody of the child—depositionde bene esse competent only in the action in which taken — Code of Civil Procedure,. § 830.
    At common law the father had the legal right to control his minor child, and was. entitled to its custody absolutely, to the exclusion of its mother.
    Under- the statute now in force in this State the surviving parent has the sole right to appoint the testamentary guardian of a child, and his or her right to the custody of the child is absolute,- provided such parent be a fit person.
    The deposition of a wife now deceased, taken de bene esse in an action brought to obtain a separation from her husband, but never finally determined, showing acts of cruel treatment upon the part of the husband towards her, is not competent evidence, in a proceeding relative to the custody of their child, upon the question as to the fitness of the husband to be intrusted with its care and custody.
    Section 830 of the Code of Civil Procedure permits its admission only on a new trial or hearing of the same action or proceeding in which the testimony was-given.
    Appeal by the defendants, Albert F. Brugman and another, from an order of the Supreme Court, made at the Westchester Special Term, and entered in the office of the clerk of the county of Westchester on the 4th day of November, 1895, awarding to the respondent the custody of his infant son.
    
      
      J. G. Julius Langbein, for the appellants.
    
      WilUam L. Snyder, for the respondent.
   Brown, P. J.

The controversy betweén the'jparties to this proceeding relates to the custody of Arthur Byrne, an infant of the age of about four years, and a son of the petitioner. The appellants are the maternal uncles of the infant, and claim to be entitled to. the custody of him,- oil the ground (1) that .they are his testamentary, guardians, "under the last will and testament of his mother, and (2), that the petitioner is not a fit and proper person to have the custody of his /.son. The learned judge who heard the case at Special Term overruled both of these claims, and we concur with his conclusions.

The appellants wholly failed to show anything in. the character. ■ofThe petitioner, or in reference to his conduct towards the infant •or its mother, which would have permitted the. court to have ■denied to him the care and custody of his son. The appellants -acquired no right in reference to the child, under its mother’s will. The petitioner had" the legal right to have the custody of his son, and the attempt upon the part of Mrs. Byrne to dispose of his •custody during his minority, by her last will and testament, created no right whatever in the appellants as against the petitioner. '

. At common law the father had the legal right to control his minor child and-was entitled to its custody absolutely, to the exclu.sion of its mother. This rule has been modified by the statutes of this .State, and the course of legislation upon the subject, appears in 2 R. S. 150, § 1; Laws 1871, chapter 32; Laws 1888, chapter 454; "Laws 1893, chapter 175. In the last statute cited every married "woman is declared to be the "joint guardian: of her children witli'lier husband, with' rights and duties in regard "t,o them equal to her. husband, -and upon the death of .either- parent the survivor is given the right by deed or will to.-dispose of the custody of such child or children 'during their minority or for any less time. This statute is /still in force, and the petitioner, being the surviving, parent, has the /sole right to appoint the testamentary guardian, of the child, and his."fight to its custody is absolute (assuming him. to be a fit person)> i(Matter of Schmidt, 77 Hun, 201.)

It appears that the petitioner and his wife were married in 1890,. and in May, 1892, Mrs. Byrne commenced an action in the Court of Common Pleas, in the city of Hew York, to obtain a separation from her husband, on the ground of cruel treatment. The petitioner appeared and put in an answer in the action. The case, however, was never brought to trial, and was pending, undetermined, in August, 1895, when Mrs. Byrne died.. Prior to her death her deposition was taken in the action de bene esse and was filed May 1, 1894. In this deposition she testified to acts of cruel treatment upon the part of her husband towards her. Upon the hearing of this proceeding this deposition was offered in evidence by the appellants, and upon the petitioner’s objection was excluded, to which there was an exception. The learned counsel for the appellants strenuously contends that this ruling was erroneous. We are of the opinion, however, that the deposition was properly excluded. The decision of the question is now controlled by section 830 of the Code of Civil Procedure. This section limits the admission of the testimony of a deceased witness, given upon the trial of an action or the hearing of a special proceeding, to a new trial or hearing of the same action or proceeding in which the testimony was given. The ruling excepted to was, therefore, clearly correct, and the" order must be affirmed,.with ten dollars costs and disbursements.

All concurred.

Order affirmed, with ten dollars costs and. disbursements. . ,  