
    People ex rel. John Parr, Resp’t, v. Margaret S. Parr, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed September, 1888.)
    
    County judge—Jurisdiction as to custody of infants.
    A county judge has no jurisdiction to try and determine the custody of children between parents. (Following People ex rel. Williams v. Corea, 12 N. Y. State Rep., 411.)
    
      Appeal from an order made by the Albany county judge in habeas corpus proceedings.
    This is a special proceeding to obtain the custody of John T. Parr, an infant, now about ten years of age, and was instituted by a writ of habeas corpus, allowed by Hon. John 0. Nott, county judge of Albany county, on the 5th day of November, 1885.
    The relator is the father of the infant; and the appellant is the mother. In obedience to said writ the defendant produced said child before the county judge on the 3d day of December, 1885. The return of the defendant to the writ of habeas corpus was in writing and verified. It set. forth abuse of defendant by the relator, ill conduct, drunkenness and immoral habits on the part of the relator, culminating on the 29th day of November, 1884, with threats on the part of the relator to shoot and kill the defendant. To preserve her life the defendant, Mrs. Parr, was compelled to leave the relator, and she took with her their child, John T. Parr. The proceedings were adjourned from time to time until the 23d day of April, 1888, when the defendant moved for a dismissal of the proceedings on the ground that it appears from the return and reply that the proceedings involved the custody of an infant child. This, motion was denied, to which defendant excepted. The evidence of the relator shows that at the time of the issuing and service of the writ of habeas corpus that the infant, John T. Parr, was in the custody of his mother, the defendant; that the relator and his wife were not living together; and that the proceeding was instituted by relator to obtain the custody of the infant child, John T. Parr. At the conclusion of the evidence of the relator the defendant again renewed her motion for dismissal of the proceeding on the ground that the county judge had no jurisdiction to try and determine the custody of children between parents. Motion was denied; defendant excepted. The county judge thereupon made a final order in the proceeding, taking and removing the child from the custody of the defendant, the mother, and awarding the custody of the child to the father, the relator. The defendant brings this appeal from said final order.
    
      George H. Stevens, for app’lt; E. J. Meegan, for resp’t.
   Learned, P. J.

The principal question in this case was decided by this court in Williams v. Corey (12 N. Y. State Rep., 411). We see no reason to disturb that decision.

The relator urges, however, that that part of the order which releases the child from the custody of the mother is not within the doctrine in the case above cited. He claims that so much of the order is simply the exercise of the ordinary right to discharge from imprisonment one who is unlawfully confined.

But we cannot so consider it. There is no unlawful imprisonment in this case. The child would be properly within the custody either of the father or the mother. And a decision releasing the child from the mother’s custody is really a decision that the father is entitled to the custody. The contest is plainly one between the two parents, and any decision must uphold the right of one or of the other. That part of the order which discharges the child from the mother’s custody is as much within the condemnation of the case above cited as that which awards the custody to the father.

The order, therefore, must be reversed in all respects and the proceedings dismissed without prejudice to any other proceeding before a proper tribunal. No costs to either party.

Landon and Ingalls, JJ., concur.  