
    Mae Dick, Appellant, v. Michael Scarfia et al., Respondents.
   Order reversed on the law and facts and matter remitted to the Special Term for further proceedings not inconsistent with the memorandum. Memorandum: The mother of a child brought this proceeding in habeas corpus to recover custody of the child from the defendants. The defendants, who are not related to the child, set up an affirmative defense of abandonment. The order appealed from provided that the writ be sustained and the infant returned to the mother unless the defendants should commence an adoption proceeding in Surrogate’s Court on or before November 15,1957. The adoption proceeding was instituted within the time limited in the order. The mother had the right to bring the present proceeding and was entitled to a determination of the issues and, in fact, had the right to custody unless it was found that she had abandoned or transferred that right or that she was unfit (People ex rel. Kropp v. Shepsky, 305 N. Y. 465). The Trial Judge made no findings as required by section 440 of the Civil Practice Act and made no determination whatsoever except for the order above mentioned. This habeas corpus proceeding was properly before Special Term and should have been decided. The order appealed from must be reversed and the plaintiff granted a new hearing, at which time findings of fact may be made and the matter determined in accordance with said section 440. All concur. (Appeal by petitioner from an order of Monroe Special Term sustaining the writ of habeas corpus and directing that the infant be returned to petitioner unless defendants begin adoption proceedings before November 15, 1957.) Present — MeCurn, P. J., Kimball, Williams, Bastow and Halpern, JJ.  