
    The People ex rel. Annie Brown and Delina Brown, Resp’ts, v. E. D. Carpenter, Superintendent of the New York Juvenile Asylum, App’lt.
    
      (Supreme Court, General Term, First Department
    
    
      Filed June 6, 1890.)
    
    
      1. Habeas corpus — What questions can be raised on.
    The court is not at liberty on habeas corpus to retry so much of the charges in a summary proceeding as had been found by the justice to have been proven before him.
    3. Children — 'Vagrancy—Penal Code, § 391.
    A commitment under § 391, Penal Code, which does not state that the father of the child was present or notified, will not authorize the detention of the child, although the mother was present at the hearing.
    5S. Same.
    The proceeding cannot be sustained where there was no proof whatever to sustain the charges, or no appearance by or notice to the parent, guardian or custodian. These are jurisdictional facts, and may be raised by an appropriate issue on return to a writ of habeas corpus, but a mere affidavit of absence of proof or notice is not sufficient for that purpose.
    Appeal from an order overruling a demurrer'to tlie traverse of returns to writs of habeas corpus and certioraris, and discharging the relators from the custody of the juvenile asylum.
    
      JSlbridge T. Gerry, for app’lt; Ambrose U. Purdy, for resp’ts. •
   Daniels, J.

It was charged in the complaints made that these relators, one of whom was then of the age of thirteen years and the other of the age of fifteen years, were found by the person making the complaints in the company of reputed prostitutes and frequenting their company in a reputed house of prostitution. And in the commitments made by the justice these facts are stated to have been proved to his satisfaction, which sufficiently satisfied so much of the law as made the proceedings dependent on those facts. But the facts themselves were denied in affidavits made by the parents of the children, byway of answer to the returns.

Arid it was to those denials that the demurrers were interposed in part. And so far at least the demurrers were well taken. For the court was not at liberty in this collateral proceeding to try so much of the charges, as had been found by the justice to have been proven on the hearing had before him. As much as that was held to be the law in People ex rel. Van Riper v. Catholic Protectory, 106 N. Y., 604; 11 N. Y. State Rep., 155.

But to warrant the commitment of the relators to the custody of the asylum, it has been further required to state, and it shall appear 'therefrom that the parent, guardian or custodian of such child was present at the examination before such court or magistrate, or had such notice thereof as was by such court or magistrate deemed and adjudged sufficient.” Penal Code, § 291. And this language has been so construed as to require the father of the person charged to be present or notified, when that person has a father who can be notified. People ex rel. Van Riper, supra.

In the case of Annie Brown, the commitment states notice to, and the presence of Ann Eliza Brown, who is the mother of these children. It contains no statement that the father was present, or had been in any form notified of the proceeding. In that respect it was radically defective, and did not authorize the detention of the relator Annie Brown.

But as to the relator Delina Brown, the commitment states the presence of and notice to Henry and Eliza Brown, who are the father and mother of this relator. In that, as well as other respects, the commitment issued to place her in the custody of the asylum was sufficient, and complied with the law. And by subd. 5 of § 291 of the Penal Code, it was “in all respects sufficient to authorize such institution to receive and retain such child in its -custody as therein directed.”

But even this language will not permit the proceeding to be sustained where there may be no proof whatever before the magistrate to sustain the charge, or no appearance by, or notice to the parent, or where there may be no parent, to the guardian or -custodian of the child. These are jurisdictional facts, and their absence may be brought in question by an appropriate issue raised for that object, upon the return to a writ of habeas corpus. Eor it is a fundamental rule of the law that the want of jurisdiction may always be shown to impeach, or avoid, legal proceedings. Chemung, etc., Bk. v. Judson, 8 N. Y., 254; Ferguson v. Crawford, 70 id., 253 ; Craig v. Town of Andes, 93 id., 405.

The justice has not been vested with arbitrary authority over these proceedings. But some evidence tending to sustain the ■charge must be produced which he should carefully hear. And when there is no appearance by the parent, he should be assured by proof that the notice mentioned in the statute has been given to the parent, or if there be none, to the guardian or custodian of the child.

These are duties he cannot disregard. And if he should disregard either of them, then by a proper issue framed upon and in answer to the return, proof can be taken establishing his want of jurisdiction to issue the commitment. A mere affidavit of the absence of proof or notice is not what the practice requires, but it is the framing of an issue under which legal evidence of the want of jurisdictional facts would be pertinent, and the production of evidence establishing the fact, or facts alleged. And on its trial or hearing the recitals in the commitment would, in the first instance, be presumptive proof of the facts recited. But in this case no such issue was tendered or framed.

But as the cases were presented to the court, so much of the order as discharged Delina Brown from the asylum was not authorized, and it should be reversed, and she should be restored to the -custody of the asylum. But so far as it directed the discharge of Annie Brown it is sustained by the defect in the commitment, and should be affirmed.

Van Brunt, P. J., and Brady, J., concur.  