
    (72 Misc. Rep. 644.)
    In re MOORE.
    (Richmond County Court.
    July, 1911.)
    1. Adoption (§ 13) — Proceedings — Evidence.
    Under the provisions of the domestic relations law (Consol. Laws 1909, c. 14), relating to the adoption of children, the question of the abandonment of a child by its mother is one of fact to be determined on competent evidence after notice to the mother.
    [Ed. Note. — For other cases, see Adoption, Dee. Dig. § 13.]
    2. Adoption (§ 16) — Proceedings — Determination of Right — Custody of
    Child.
    In the absence of notice to a mother of proceedings to adopt her child, the question of her abandonment of the child may be raised by her on motion to vacate the order of adoption.
    [Ed. Note. — For other cases, see Adoption, Dec. Dig. § 16.]
    3. Bastards (§ 15) — Right to Custody.
    Though a child is nullius filius, its mother is not necessarily an unfit person to have its care and custody.
    [Ed. Note. — For other cases, see Bastards, Cent. Dig. §§ 19, 20; Dec. Dig. § 15.]
    Application by Rhodes H. Moore to adopt John Henry Moore, an infant under the age of 12 years. Motion to vacate order of adoption. Granted.
    Albert C. Fach, for the motion.
    A. B. Widdecombe, for the parent by adoption.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date. & Rep’r Indexes
    
   RAWSON, J.

I have examined with considerable care the provisions of the ■ domestic relations law relating to the adoption of children and relating to apprentices and servants. Some of the provisions of these laws are.similar to the provisions of the Revised Statutes as to apprentices and servants, and the decisions under the Revised Statutes have aided me in construing the comparatively new provisions of the law relating to adoption; and I have arrived at the conclusion that the question of the abandonment of a child by a parent is a question of fact to be determined in some manner upon competent evidence (under Revised Statutes it was by a justice of the peace), and that the determination in such a case as this should, if practicable, be upon notice to the mother of the child. Matter of MacRae, 189 N. Y. 142, 81 N. E. 956. In this case the mother had no opportunity to contest that question. If it could have been threshed out before the county judge, primarily, it should have been upon notice to her.

In the absence of such notice, I think the question may be raised on this application. It could be raised on habeas corpus. Matter of Larson, 31 Hun, 539. Why not here? The evidence as to abandonment laid before my learned predecessor was a mere conclusion of fact, and such conclusion was false, and the falsity of that evidence and its insufficiency is ground for setting aside the order of adoption, if I have the power so to do.

The child is nullius filius, but it does not by any means follow that the mother of such a child is not a fit person to have its care and custody. The evidence before me seems to warrant the conclusion that she is a fit person, and the evidence upon which the order of adoption was made seems to me to have been insufficient to warrant a contrary conclusion. The dictates of common humanity would seem to require that the custody of this child be given to its mother; and, believing that I have the power and the right so to do (Matter of Trimm, 30 Misc. Rep. 493, 63 N. Y. Supp. 952), it will be ordered that the order of adoption heretofore granted be vacated and set aside.

Motion granted.  