
    The People of the State of New York ex rel. John Sampson, Respondent, v. The New York Catholic Protectory, Appellant.
    
      Habeas corpus to obtain possession of a child held under a commitment — the child’s welfare cannot be considered. '
    
    Where, on the return to a writ of habeas corpus to inquire into the cause of the detention of the petitioner’s infant son, it is undisputed that the responds ent’s custody of the child is by virtue of a commitment ¿ade by a magistrate, the court should remand the child into the respondent’s custody.
    Such a writ is simply a writ of right and the question of the child’s welfare . cannot enter into the determination of the court.
    Appeal by the defendant, The New York Catholic Protectory, - from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 10th day of April, 1903, sustaining a writ of habeas corpus theretofore allowed herein upon the petition of one Lizzie Sampson, and awarding the custody of the relator to said petitioner.
    
      Joseph T. Ryan, for the appellant.
    
      Joseph P. Nolan, for the respondent.
   Van Brunt, P. J.:

One Lizzie Sampson petitioned the court for a writ of habeas corpus alleging that one John Sampson, her son, was restrained of his liberty by the defendant, and that he had not been committed or detained by virtue of any judgment, decree, final order or process specified in section 2016 of the Code. The petition further alleges that the prisoner was detained under an agreement between the defendant and the petitioner, whereby the custody of the relator was to be assumed by the defendant for a stated period of time. As a return to the writ of habeas corpus the defendant stated that it held the relator under a commitment by one of the city’s magistrates dated October 4, 1895, a copy of. which was annexed to the return. There was no traverse to this return; it must, therefore, be accepted as true.

As the writ of habeas corpus is simply a writ of right, the only question brought up is the fact of the commitment. This fact is not disputed, and, consequently, the relator should have been remanded. The allegation in the petition that the relator was held by virtue of an agreement between his mother and the defendant, is negatived by the return which states that he is held by virtue of a commitment.

Our attention is called by the respondent to Matter of Knowack (158 N. Y. 482), but it will be observed that that proceeding was initiated by a petition and was addressed to the chancery powers of the court, and the regularity of the proceeding under which the person sought to be released was held was in no way challenged. It was there held that where there has been an interference by the. court to protect and care for the child at the public’s expense, the chancery powers of the court as to the restraint of the child seem only to be limited by the necessities of the case, having due regard to the welfare of the infant. When a proceeding of this kind is initiated in respect to the relator, then the chancery powers of the court may be called into action, if necessary, for the Welfare of the child. But in a habeas corpus proceeding no such considerations can enter into the determination.

The order should, therefore, be reversed and the relator remanded to the custody of the defendant.

Patterson, Ingraham, Hatch and Laughlin, J J., concurred.

Order reversed and relator remanded to the custody of the defendant.  