
    In the Matter of the Application of Catherine Donnelly, for a Writ of Habeas Corpus to Bring Up the Body of Edna May Legge, an Infant.
    (Supreme Court, Kings Special Term,
    February, 1911.)
    Parent and child — Custody and control of child — Eight of parent as against third person — Effect of agreement of parent to release claim to custody of child.
    Where a woman, whose husband has lately died and who, being compelled to work for a living, cannot take care of her infant child, gives it to others for adoption by a writing and releases all claim upon it, and those to whom it is given promise to adopt it and feed, clothe and educate it and treat it as their own born child, but no legal adoption of the child is accomplished under the statutes, after having become -able to care for it and bring it up she may reclaim it and its custody will be awarded to her upon a writ of habeas corpus.
    
      Hearing upon the return to a writ of habeas corpus.
    H. C. Underhill for petitioner.
    Anthony F. Duozzo, for respondent.
   Kapper, J.

This writ is directed against Jennie Foos who •is alleged to have the unlawful custody of the petitioner’s child, a girl about one year and nine months old. The respondent’s return to the writ is that her custody of the child is lawful and based upon a written agreement entered into between the petitioner and the respondent and the latter’s husband. That instrument states that the petitioner as the mother of the child, 'then three weeks old, does “ hereby give said baby to Bobert Foos and Jennie his wife, of Bo. 3 Vanderveer street, Brooklyn, B. Y., for adoption by them and I hereby promise and swear that I release all claim on said baby, now and forever, and Bobert Foos and Jennie, his wife, do also promise and swear to adopt said child, to feed and clothe it in sickness and in health and to educate her religiously and otherwise as long as she lives unmarried, and treat her as their own born child.” Legal adoption, however, did not follow the making of the agreement.

The petitioner in support of the writ says that, when she gave the custody of the child to Mrs. Foos, her husband had but recently died which left her with said infant and another child to support, and that her time was all occupied in earning a livelihood, and “ for that reason your petitioner allowed the said Jennie Fbos to have the custody of said child until such time as your petitioner could care for her.” 'She further says that she has remarried; that her husband is an engineer by occupation and in receipt of good wages, and that both she and her husband are in good health and able to care for and properly bring up said infant. The facts are practically undisputed. The respondent rests upon the agreement as furnishing a legal ground for the retention of 'the child, and the petitioner’s traverse to that return, as entered'upon the record at the hearing, asserts that such return is insufficient in law.

A number of cases have been cited by the respondent in support of her position, which, in effect, uphold an agreement to maintain and care for a minor child, but none of which relates to the custody and the bringing up of such child. All of them presented the question of a claim on behalf of the child for an interest in the estate of the person who became the child’s custodian by virtue of an agreement with its parents to care for it and make it an heir. Middleworth v. Ordway, 191 N. Y. 404; Healy v. Healy, 55 App. Div. 315; Godine v. Kidd, 64 Hun 585. See also Brantingham v. Huff, 174 N. Y. 53; Matter of Thorne, 155 id. 140.

The question here is not as to the infant’s interest in the property or estate of Mr. and Mrs. Foos, but is wholly that of the welfare of the child during infancy.

Particular stress is laid by the respondeut upon Judge Vann’s language in Middleworth v. Ordway, supra, (at p. 411), where he said that, A father unable to provide for his infant child, may transfer the custody, control and the right to the services thereof-to another,” but to this the learned judge added that such a transfer was “ subject to the right of a court of equity to interfere in the interest of the child.” Where, therefore, as in this case, the child is of very tender years, and there having been no adoption pursuant to statute, the duty of a court of equity to interfere with the agreement in the interest of the child seems to me to be presented. Ho doubt Mr. and Mrs. Foos have become quite fond of this child and will care for it, if permitted to, as faithfully and lovingly as the mother. But, such an agreement as ¡vas here made by this mother, considering the circumstances in which she was placed at the time, should not be held against her, when she evinces the natural desire to reobtain her child and a willingness and an ability to care for it as well. The relation of mother and child is paramount to all other considerations here shown, and the humane and just thing to do is to give her back her child.

Writ sustained.  