
    The People ex rel. Lafayette E. Pruyne, App’lt, v. Charles H. Walts, Resp’t.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed October 7, 1890.)
    
    Habeas Corpus—Custody op child.
    The withholding of a child from its legal guardian and delivering it to other control or custody when such disposition is for the best interests of the child, is a matter which rests very largely in the discretion of the court or officer who issues a writ of habeas corpus.
    
    Appeal from an order of the general term of the fourth judicial department, affirming an ordef made by Mr. Justice Kennedy, at chambers, dismissing a writ of habeas corpus.
    
    The relator was a testamentary guardian of Terzah G. Bigelow, the infant daughter of Lyman E. and Melitta H. Bigelow, who, at the commencement of these proceedings, was between seven and eight years of age.
    In September, 1883, Mrs. Bigelow left her husband, taking her daughter with her, and went to the house of her father, where she resided until her death in December, 1886. While residing with her father, who was a widower, she arranged with the respondent and his wife that in case of her death her daughter should make her home with them, and a few days after the mother’s death the child became a member of the respondent’s family. Lyman E. Bigelow died in August, 1884, leaving a will, by which, after giving small legacies to his wife and daughter, he made the relator residuary legatee of his estate, and appointed him guardian of the person and estate of his daughter. '
    This proceeding was instituted in January, 1887.
    
      Watson M. Rogers, for app’lt; Levi H. Brown, for resp’t.
    
      
       See 47 Hun, 632.
    
   Brown, J.

This case is very similar in its facts to Matter of Welch, 74 N. Y., 299. There as here the contest was between the testamentary guardian appointed by the will of the father, and those to whose custody the mother had committed the child. There as here the special term dismissed the writ, without prejudice to further proceedings, for reasons affecting the health and welfare of the child. This court dismissed the appeal, holding that such reasons justified the withholding the custody of the child from its legal guardian and that the matter was one so purely within the discretion of the special term that its conclusions would not be reviewed.

We are of the opinion that the same disposition must be made of this appeal See also People ex rel. Lucy Allen v. William H. Allen, 105 N. Y., 628; 6 N.Y. State Rep., 795.

The learned counsel for the relator claims that it was an abuse of discretion to withhold the custody of the child from its legal guardian. The rights of the guardian are no greater than those of the father and the cases are numerous where the custody of an infant has been withheld from a father upon considerations relating to the child’s welfare. In re McDowle, 8 Johns., 328; People v. Weissenbach, 60 N. Y., 385.

The common law writ of habeas corpus was a writ in behalf of liberty, and its purpose was to deliver a prisoner from unjust imprisonment and illegal and improper restraint.

It was not a proceeding calculated to try the rights of parents and guardians to the custody of infant children.

It was of frequent use, however, when children were detained from their parents or guardians, on the ground that absence from legal custody was equivalent to illegal restraint and imprisonment

In the case of children of the age of discretion the object of the writ was usually accomplished by allowing the party restrained the exercise of his volition, but in the case of an infant of an age to be incapable of determining what was best for itself the court or officer made the determination for it, and in so doing the child’s welfare was the chief end in view. Rex v. Delaval, 3 Burr., 1434; Matter of Waldron, 13 Johns., 418; People v. Mercein, 8 Paige, 47; S. C., 25 Wend., 73; People v. Wilcox, 22 Barb., 178; Wilcox v. Wilcox, 14 N. Y., 575; People v. Weissenbach, 60 id., 385; see also Hurd on Habeas Corpus, chap. 9.

The purpose of the writ, as now regulated by the Code, is the same. Code Civ. Pro., §§ 2015, 2031.

The court is bound to respect the legal rights of the parent or guardian, and their rights cannot be overthrown by the mere wishes of the child. But the jurisdiction to be exercised by the court or officer is equitable in its character, and the welfare of the child is the chief object to be attained and must be the guide for the judgment of the court

It is entirely competent, therefore, for the court, while recognizing the legal rights of the guardian, to make a temporary disposition of the child and to deliver it to other control or custody when such disposition is for the best interests of the child, ana this is a matter which rests very largely in the discretion of the court or officer who issues the writ.

Such was the only order made in this case. It provided that it should be without prejudice to a renewal of the relator’s application, and no final adjudication against the legal right of the relator has been made.

We are of the opinion, therefore, that there is nothing before us for review.

The appeal should be dismissed, with costs.

All concur, except Follett, Ch., J., not sitting, and Potter, J., absent.  