
    
      In re Maloney.
    
    
      (Supreme Court, General Term, First Department.
    
    January 28, 1889.)
    Parent and Child—Neglected Child—Commitment—Notice to Guardian.
    Under Pen. Code N. Y. § 391, providing that upon complaint being made against a vagrant child the magistrate shall cause the child to be brought before him for examination, and shall also cause its parent or guardian, if any. to be summoned to attend the examination, a commitment without summoning the guardian of the child, when it has one, is invalid, and the child will be released on habeas corpus.
    
    Appeal from special term, 2iew York county.
    
      Habeas corpus at the relation of Margaret Heery against the Sisters of St. Dominick, a corporation, for the release of James Maloney, an infant alleged to be unlawfully detained. The return showed that the defendant detained the child under commitment as a vagrant by a police justice. The petitioner traversed the return, alleging that she was the guardian of the child, and had provided him with a home, etc., and that she had no notice of, and was not present at, the proceedings for the commitment. A demurrer to the traverse was overruled, and the child discharged by an order of the special term at chambers, September 24, 1888, and the defendant appeals.
    Argued before Van Brunt, P. J., and Brady "and Macomber, JJ.
    
      E. T. Gerry, for appellant. E. G. Belay, for respondent.
    
      
       Affirming 2 N. Y. Supp. 247.
    
   Brady, J.

The infant, James Maloney, was taken before a police justice on a charge which appears to have been stated under oath as follows: “The James Maloney now present, aged four years, was found by deponent, not having any home or propei^guardianship, being in a staté 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 1888, § 291. The notice is to be given to the parent, guardian, or custodian of the child. It was given to no 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 lawfui, 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 and 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, or state where he lived; and, if given by some other person, the further information 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 be, as they unfortunately often are, unable to continuously furnish all the necessary comforts to their children. It is not to meet such temporary emergency that the statute was enacted, but, 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 of exposure. The language of the section manifestly refers to those waifs wrho 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 v. Protectory, 106 N. Y. 610, 13 N. E. Rep. 435. It is not necessary, however, to pursue this view of reasoning. It is enough that the statute required the 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 supra. And as said by Justice Andrews in the case cited: “ It is not consistent with the security of personal liberty to indulge in eases of summary convictions in latitude or liberality of intendment to support them. ” For these reasons the order appealed from should be affirmed. Ordered ac- . cordingly. All concur.  