
    Supreme Court-General Term-first Department.
    January, 1889.
    MATTER OF MALONEY.
    'Commitment of Child to Institution.— Penal Code, section 291.
    Tue commitment of a child by a magistrate as not having any home or proper guardianship, being in a state of want and suffering, and destitute of means of support (Penal Code, § 291), which does .not show that a notice of the proceeding was given to the parent, guardian or custodian of the child, is fatally defective.
    The provisions of section 291 of the Penal Code as to the giving of notice of the proceeding are imperative, not discretionary.
    The provisions of this section do not refer to a child casually and temporarily in the street without protection, but to those waifs who are in a permanent and usual condition of having no home, place of abode, or guardianship, or who are permanently abandoned, improperly exposed, or in a state of want and suffering.
    The information in these proceedings for summary conviction ought to be precise and show a case clearly within the statute, and when an essential ingredient or circumstance is omitted, and the defect is not supplied by the evidence, the conviction is bad. -
    Appeal by the Sisters of the Order of St. Dominick from an order made at Special Term, September 26, 1888, Mr. Justice Babbett presiding, upon the return to writs of habeas corpus and certiorari, obtained by Margaret Heery, ■discharging from the custody of the appellants James Maloney, an infant.
    . The child in question in the present proceeding, who was about four years of age, was found by an officer of the
    
      Society for the Pi-even ti on of Cruelty to Children, according to his affidavit, in the city of Hew York, “ not having any home, or proper guardianship, being in a state of want and suffering, and destitute of means of support, the child’smother being dead, and the whereabouts of his father being-unknown.”
    He was taken before a police justice who, on the same day, examined orally the-complaint and the witnesses before him, and also the said child, who was produced for his personal inspection; and the magistrate states that it then and there appeared and was conclusively proven to him to his-satisfaction by competent testimony and evidence, that the-material allegations set forth and charged in the complaint were true; and he thereupon, by a final commitment, committed said child to the appellants’ custody.
    On September 7, 1888, writs of habeas corpus and certiorari were sued out by .the relator, Margaret Heery. The appellants, in response to the writ of habeas corpus, produced the child and made return that he was in their custody by virtue of the commitment. The justice’s return to the writ of certiorari sets forth the facts above stated, annexes the affidavit of complaint, and states that the remaining testimony and evidence in the case were not reduced to writing. Upon such return, the relator traversed the same,, denying the fact that the child was without a home" or proper guardianship, and stating that since the death of its mother she had had the care, custody and control of the child, had provided "him with a comfortable home at her house, and has always properly cared for and supported the child and guarded his health and morals; that the father of the child has not been heard from in years, that his whereabouts were unknown, and she had no notice of the proceedings upon which the commitment was had. To this traverse the appellants demurred. Mr. Justice Babrett overruled the demurrer and discharged the child, delivering a written opinion, as follows: “ The fact that the child had a guardian could readily have been ascertained by a proper investigation—probably by interrogating the child himself. At all events, there was such a guardian, and the question is-whether notice of some kind should not have been given. The spirit of all the acts and decisions upon this subject favors the conclusion that such notice should have been given. I find provision for it in section 291 of the Penal Code as amended in 1886 and 1888, and in the Consolidation Act of 1882 (§§ 1594-1632). The cases, too, seem to recognize the necessity for such notice (101 JSf. Y. 105 ; 106 Id. 604). It is true that the notice referred to in section 291 of the Penal Code is special—that is, a notice which, if given, shall render some other or different notice under local or special statutes unnecessary. Still, I think that the notice thus contemplated was intended to be a general requirement. It would be strange indeed, and exceedingly harsh, if an adjudication should be permitted entirely ex parte that a child was without proper guardianship. Such an adjudication runs practically against the guardian as well as against the child, and yet such guardian is stigmatized as ‘ improper ’ without the opportunity of defending himself or herself or the child. Upon the whole, I think that the demurrer should be overruled and the child discharged.”
    From the order overruling the demurrer and discharging the child this appeal is taken.
    
      John B. Pme (.Elbridge T. Gerry, of counsel), for appellants.
    I. The relator had no standing in court. Her traverse to the return discloses no legal right to the child’s custody, either by way of relationship, legal guardianship, adoption, or of appointment, by the child’s parents to that position. Even if she did care for, clothe and support the child, this-gave her no legal right to its custody. The traverse nowhere avers any relationship, and her voluntary assumption, of the possession conferred upon her no right to question! its custody by an institution to which it had been duly committed by process of law.
    Certainly, as against the adjudication of the magistrate that the child was found in the streets of the City of Rew York destitute and without means of support, her assertion to the contrary amounts to nothing in the way of establishing a legal claim to custody, especially as there is no explanation as to where she lived, how the child came into her possession, why she made no effort to find the child until a year after its commitment, and when her entire claim is based upon the naked assertion that the child had been in her custody under a state of facts utterly at variance with that in which it was actually found.
    II. The return of the police magistrate in the present -ease was conclusive as to the facts stated therein, and the learned justice at Special Term erred in not so holding.
    1. The Court of Appeals and this court have repeatedly decided that where a commitment is valid upon its face, the jurisdiction of the magistrate making the same is the only question presented for review by writs of habeas corpus and certiorari; and that the latter writ does not extend the power of the court to permit it to go behind a valid commitment, or to retry questions of fact upon which final judgment has been rendered by the committing magistrate. People ex rel. Van Riper v. N. Y. Catholic Protectory, 5 N. Y. Crim. Rep. 499; People ex rel. Perkersoen v. Sisters of St. Dominick, 2 N. Y. Crim. Rep. 528; People ex rel. Eck v. American Female Guardian Society, Id. 538 n.; In re Moses, 1 N. Y. Crim. Rep. 508.
    2. The assertion by the relator to. contradict the recital in the commitment, stating facts the reverse of those contained in the commitment, cannot be considered and is not admitted by the demurrer. People ex rel. Van Riper v. N. Y. Catholic Protectory, supra.
    
    III. The learned judge erred in supposing that the absence of notice of the proceeding before the magistrate to the relator vitiated the commitment.
    
      1. He assumed in the first place that the relator was the guardian of the child and entitled to notice. As already shown, she occupied no such legal position.
    2. Under the law as the Code stood at the time of the commitment, the only provision in the statute as to notice was as follows: “ Whenever any child shall be committed to an institution under this Code, and the warrant of commitment shall so 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, no further or other notice required by any local or special statute in regard to the committal of children to such institution shall be necessary, and such commitment shall in all respects be sufficient to authorize such institution to receive and retain such child in its custody as therein directed.” Penal Code 1887, § 291.
    3. Now, there are certain institutions, such as the New York Catholic Protectory, the New York Juvenile Asylum and others, where there are local and special provisions (as Judge Finch says in his opinion) wdiich are local and specially confined to the City of New York and having respect to its situation and needs. The appellants, being incorporated under the general law, are not subject to any of these statutes, and consequently no special notice was required. The learned justice, however, insists that the statute was intended to require a general notice—a conclusion which is not warranted, either by the language of the statute itself, or the decision in the Van Heck case, which he cites.
    4. Indeed, it is difficult to see in the present case how any notice could have been given to the relator. It nowhere appears in the case, where she resides or where she has resided, where notice could have been given to her, or, indeed, whether she resided at the time within the State or City of New York. In the absence of any such averment or allegation, and the fact of the conceded death of one parent and the unknown whereabouts of the other, it is respectfully submitted that as matter of law upon the traverse to the return the relator showed no legal right to any notice whatever of any proceeding affecting the child in question, nor where such notice could have been given to reach her.
    IY. The learned judge erred in ruling that in cases like the present no adjudication can be permitted ex parte that a child is without proper guardianship.
    Now, the Penal Code was expressly intended to prevent any such action. Section 291, subdivision 5, expressly provides, “Whenever any commitment of a child for any reason may be adjudged or found defective, a new commitment of the child may be made or.directed by the court or magistrate, as the welfare of the child may require.”
    In order to entitle a person claiming the custody of a child to legal notice, the person must show a legal right to that custody; and in the present case, where a year is suffered to elapse without any attempt or inquiry being shown to regain possession of the child, the latter certainly should not have been discharged from an institution where it was properly cared for, and committed to the tender .mercies of one who, according to the record so omitted to take such care of it, that it was found in the public streets of the Oity of New York destitute of means of support.
    
      E. G. Delaney for respondent, Mary Heery.
   Bradt, J.

The infant James Maloney was taken before a police justice on a charge which appears to liaVe been stated under oath as follows: “That James Maloney, now present, aged four years, was found by deponent, not Timing any home or proper guardianship, being in a state of want and suffering, and destitute of means of support, the child’s mother being dead and the whereabouts of the father being unknown.” This appears to have been made the subject of inquiry by the justice, who became satisfied that it was true, and a commitment was issued. That process does not, however, contain a statement of any notice given of the proceeding which was required by the Penal Code of 1887, section 291. The notice is to given to the parent, guardian or custodian of the child. It was given to nó one. The record shows that the infant was in the custody of a person, and whether the possession was obtained rightfully or wrongfully makes no difference; the .design of the statute was to protect homeless children, and those in a state of want ■or suffering, from want of proper guardianship, and those .also destitute of support. The absence of proper guardianship would be established by proof of abandonment or neglect, resulting from the bad habits of the custodian or parents, and by which the infant was permitted to be in a .state of want or suffering. The object of the statute was beneficent, however censurable for the power conferred by it or the omission of comprehensive guards against oppression or despotism, if it be subject to any such criticism. The infant, for example, may be found on the street alone, half clad, cold, hungry, either or all, and suffering, and without any apparent protection. This condition may arise from gross neglect of guardian or custodian, or from the •culpable negligence of the parents, or from accident, the child having temporarily strayed away from its home without fault of its.custodian. If taken before a magistrate, which would be a humane act, as well as lawful, the inquiry begins, the design of which is to ascertain whether the circumstances are usual or unusual, and to dispose of the charge accordingly. If the circumstances are unusual, and the child have a home and custodian, the statute does not apply; but if it be otherwise, and the child has neither, then it should be protected by a commitment. In order properly to ascertain whether the circumstances are usual or unusual, a notice is provided for, and the provision relating to it is ■comprehensive^and sweeping. It is to be given to parent, guardian, custodian, and thus embraces all. It does not ■matter how the custody has been obtained, for it might be that the parents are unknown, except to the custodian, who may have accepted the child as a charge, or stolen or found him. It is impossible that for any period worth consideration an infant should be absolutely without a custodian, and hence the provision relating to that personage to which reference has been made. The officer taking the child aad making the charge in this proceeding, for example, gives-the name of the infant. From whom was the information derived % If from the infant, he could no doubt have given. the name of the person with whom he lived, and who had. charge of him, and state where he lived. And if given by some other person, the further informantion could no doubt' be obtained. There does not appear, therefore, to be any reason why the salutary, and, indeed, indispensable, element of notice should be disregarded, even if a discretion in relation to its use were given to the committing magistrate but it is not. The legislature must have contemplated that great suffering, if not great wrong, might be entailed or done by hasty and improvident arrests under the provisions-of the act. The poor are not destitute of great love of their offspring. Indeed, their affection for them is as expressive and impressive as that in other spheres, but they may often, as they unfortunately are, be unable to continuously furnish all the necessary comforts to their children.. It is not to meet such temporary emergency that the statute-was enacted, b.ut, as suggested, to provide against the culpable neglect of the parents, their demoralization from bad habits, their unfitness for any cause to be allowed to retain their children and permit them to suffer from any form off exposure. The language of the section manifestly refers to-those waifs who are homeless, having no abiding place and no guardian, and to a permanent and usual condition, and. not to a child casually in the street without protection.. People ex rel. Van Riper v. New York Catholic Protectory, 106 N. Y. 610 ; 5 N. Y. Crim. Rep. 499. It is not necessary, however, to pursue this line of reasoning. It is enough that the statute required this notice. The information in these proceedings- for summary conviction ought to-be precise and show a case clearly within the statute; and when an essential ingredient or circumstance is omitted and-the defect is not supplied by the evidence, the conviction is bad. Case sufra. And, as said by Justice Andrews in the-case cited, “It is not consistent with the security of personal liberty to indulge, in cases of summary convictions, in latitude or liberality of intendment to support them.”

For these reasons, the order appealed from should be-affirmed. Ordered accordingly.

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