
    The People of the State of New York ex rel. Lee McCanliss, Respondent, v. Irene McCanliss, Appellant.
   Order awarding custody of infant child to respondent reversed upon the law, with ten dollars costs and disbursements, and habeas corpus proceeding dismissed, with costs. At the time of the commencement of the habeas corpus proceeding there was pending an action for the annulment of the marriage between appellant and respondent, in which respondent sought the custody of an infant child of the marriage. This was the same relief he sought in the habeas corpus proceeding. The adjudication in the habeas corpus proceeding, if sustained, would be binding in the annulment suit on the question of custody of the child, and no further. (Matter of Lee, 220 N. Y. 532; Ferris Extraordinary Legal Remedies, § 55, pp. 72-74; Freeman Judgments [5th ed.], §§ 827-829.) In face of the pendency of the annulment suit, in which judgment awarding the custody of the child to the respondent is sought, the habeas corpus proceeding should have been dismissed. Lazansky, P. J., Young, Kapper, Seudder and Tompkins, JJ., concur.  