
    The People of the State of New York, ex rel. John Oprandy, Appellant, v. Vincenzo Ciarcia, Respondent.
    
      Habeas corpus—under what circumstances a child will not be compelled to leave the home of her choice and to return to her father's house.
    
    Where a girl, whose father forced her into a distasteful marriage at the age of sixteen, leaves her husband after living with him three months, and of her own free will takes up her residence with a stranger, she will not be required, in habeas corpus proceedings, instituted by her father, to abandon the home of her adoption against her will and go to that of her father, where there is no evidence that, her reputation has' suffered or will suffer through her changó of residence, although it appears that an attachment has arisen between the girl, -whose former marriage .had been annulled, and the son of her adopted father, and that the parties expect to marry when the girl reaches the. age of consent.
    
      Appeal by the relator, John Oprandy, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings oh- the 19th day of June, 1899, dismissing a writ of habeas corpus theretofore issued; also from an order entered in said clerk’s office on the 12th day of January, 1900, denying the relator’s motion to vacate and cancel said judgment; also from an order entered in said clerk’s office on the 5th day of April, 1899, denying the relator’s motion to set aside an order of reference in the above proceeding, and also from an order entered in said clerk’s office on the 24th day of May, 1899, dismissing a writ of habeas corpus.
    
      Roger M. Sherman, for the appellant.
    
      David Swits, for the respondent.
   Hirschberg, J.:

The appeals are wholly without merit. The relator, on the 12th day of January, Í 899, sued out a writ of habeas corpus to secure the •custody of his daughter, a minor, who, he alleged, was imprisoned and restrained of her liberty by Angelo Ciarcia, and by his son, the respondent, Vincenzo Ciarcia. The writ was never served. on Angelo. It was served on Vincenzo, who duly made return denying the possession, custody or restraint by him of the relator’s daughter as alleged in the petition, which return the relator duly traversed, and the issues so raised were sent to a referee to take proof and submit the same to the court writli his opinion. The referee reported the evidence, with his opinion, to the effect that the allegations 'of the relator’s petition were not sustained; whereupon the petition was dismissed by the court, with costs and disbursements, and subsequently a judgment was granted and entered to the like effect, with the costs and disbursements inserted as taxed.

The petition on which the writ was issued asserted that the relator’s daughter, Mary Oprandy, was unlawfully deprived of her .liberty by Angelo and Vincenzo Ciarcia, and that by persuasion or force they had induced her to leave her father’s house, and to remain and live with Vincenzo Ciarcia under circumstances as to injuriously affect her reputation.

The evidence presented to the referee conclusively established the , fact that the relator’s daughter was not deprived of her liberty at all. It demonstrated, on the contrary, that she was enjoying it. The girl attained the age of sixteen years oh the lltli day óf August, 1898. On the 9th day of August, 1898, her father took her from his home at Mount Vernon, Westchester county, to the city of New York, and there had her married to a man named Gaudenzio Sgritta, with whom she' lived about three months, and upon the 12th day of December, 1898, the marriage was annulled by a decree of the Supreme Court, procured in a suit instituted by her father. She charges both her father and her husband with brutal and unkind treatment of her, and alleges that her marriage was forced on her by her father. After she left her husband she went of her own free choice to live with Angelo Ciarcia, who keeps a grocery store at Mount Vernon, and she has been employed to-work in the store for her board, support and lodging. There is no word of evidence to indicate that she is under the slightest restraint, but on the contrary she testified, and her evidence was abundantly corroborated, that she had an unfriendly feeling toward her father because he had driven her from his house and forced her into a distasteful marriage, and that she preferred to live with and work for Angelo Ciarcia. That an affection exists between her and the respondent, Vincenzo Ciarcia, and that they hope and expect to marry when she reaches the age of lawful consent is quite apparent, but the evidence is bare of any word or suggestion to the effect that the existing relations between them are either immoral or disreputable. Nor is there the slightest evidence tending to-show that she has suffered or will suffer in reputation by the exercise of her choice as to home and occupation. She is, in no respect, imprisoned or restrained of her liberty by any one, and is not even harbored by the respondent, but remains in the service of the respondent’s father because she prefers such service to her life at her father’s home.

Manifestly the court was not required, under these circumstances, to violently take this young woman, who will be eighteen years old in less than five months, away from the home of her adoption and drive her to her father’s house. Conceding the power, its exercise would involve serious practical difficulties. But the writ of habeas corpus is not vested with any such office. As was said in People ex rel. Pruyne v. Walts (122 N. Y. 238, 241) “ the common-law writ of habeas corpus was a writ in behalf of liberty, and its purpose was to deliver a prisoner from unjust imprisonment and illegal and improper restraint. It was not a proceeding calculated to try the rights of parents and guardians to the custody of infant children. It was of frequent use, however, when children were detained from their parents or guardians on the ground that absence from legal custody was equivalent to illegal restraint and imprisonment. In the case of children of the age of discretion, the object of the writ was usually accomplished by allowing the party restrained the ■exercise of his volition / but in the case of an infant of an age to be incapable of determining what was best for itself, the court or officer made the determination for it, and, in so doing, the child’s welfare was the chief end in view. (Rex v. Delaval, 3 Burr, 1435 ; In re Waldron, 13 Johns. 418; People ex rel. Barry v. Mercein, 8 Paige, 47; 25 Wend. 73; People ex rel. Wilcox v. Wilcox, 22 Barb. 178; Wilcox v. Wilcox, 14 N. Y. 575 ; People ex rel. Whele v. Weissenbach, 60 id. 385; Hurd on Habeas Corpus, chap. 9.) The purpose of the writ, as now regulated by the Code, is the same. (Code Civ. Pro. §§ 2015-2031.) ”

The appellant’s daughter is exercising her own volition. The respondent is exerting no influence or control over her. The appellant cannot say, nearly a year after a marriage which he has forced upon her, that she is too young to have a will of her own. The case is barren of proof that her interests or welfare require a change in her status or disposition, and she is, under the circumstances of the case, beyond the discipline or control of the court. The order dismissing the writ was, therefore, proper, and it was in the discretion of the court to award costs. (Matter of Barnett, 11 Hun, 468.) The case of People ex rel. Van Riper v. N. Y. C. Protectory (106 N. Y. 604) is distinguishable. There the child was committed by a police justice after an examination of charges under the provisions of the Penal Code. The proceedings being criminal in their nature, there was no authority to impose costs upon the institution to which she was committed, in habeas corpus proceedings designed to secure her release. So in People ex rel. New York Soc. for the Prevention of Cruelty to Children v. Gilmore (88 N. Y. 626) where the proceeding was for a criminal contempt. Here, however, there has been no criminal charge or commitment, and the proceeding is a civil one.

The so-called judgment entered in the proceedings on the 19th day of June, 1899, was, perhaps, unnecessary, and may be regarded-in form as unauthorized. As was said of it, however, by the learned justice at Special Term, it declares no rights founded on error, but merely reiterates the dismissal of the writ as embraced in the order of the court, entered May 24, 1899, and embodies the taxation of the costs and disbursements in a specific amount, as to which the appellant alleges no error. It may be reasonably regarded as the-final order in the proceeding.

The orders should be affirmed, with ten dollars costs in all, and' the disbursements.

All concurred.

Orders affirmed, with ten dollars costs and disbursements.  