
    In the Matter of the Application of Alois Michelic, for a Writ of Habeas Corpus to Determine the Custody of Mart Michelic, an Infant.
    Supreme Court, Special Term, Queens County,
    August 24, 1950.
    
      William King for Alois Michelic, petitioner.
    
      Herbert E. Rosenberg for Carl Zanchelli and another, respondents.
    
      John P. McGrath, Corporation Counsel (David Rosenberg of counsel), for Raymond M. Hilliard, as Chairman of the Department of Welfare of the City of New York, respondent.
    
      Francis M. McGoldrick for Convent of Sisters of Mercy, respondent.
   Stoddart, J.

In this habeas corpus proceeding, the petitioner father seeks the custody of his child. The welfare department of the City of New York and the Angel Guardian Home, as parties to the proceeding, ask that the child be returned to the Angel Guardian Home.

In opposition to changing the child’s custody appear Mr. and Mrs. Zanchelli, with whom the child is presently boarding and with whom the child has been boarding for a number of years. The court believes that the child is happy in her present home, and that the occupants of that home are genuinely fond of the child. However, Mr. and Mrs. Zanchelli have no legal right to the custody of the child, and they can not resist or prevent a return of the child to the agency which placed her with them. It may seem harsh to break the affectionate ties which have developed, but I must decide this proceeding in accordance with the law as I understand it to be. In Matter of Convent of the Sisters of Mercy v. Barbieri (200 Misc. 112) and Hagan v. Alvano (N. Y. L. J., Aug. 8,1950, p. 208, col. 7) Justices Golden and Rabin have decided similar proceedings in the way I am about to decide this proceeding.

The writ will be sustained to the extent that the child will be returned to the Angel Guardian Home or its representative, if in court, forthwith.

The application of the respondent for a stay is denied. The respondent’s contention that this court is prejudiced is without basis and unworthy of comment.

Submit order.  