
    The People of the State of New York ex rel. William M. Lawson, Appellant, v. Lena L. Lawson, Respondent.
    Second Department,
    March 16, 1906.
    Habeas corpus to determine custody of child pending action for divorce. '
    When on habeas corpus to determine the custody of children pending an action for divorce it is shown that the children are boys not of such tender years that the mother is essential to their daily living; that the mother is indiscreet, intemperate of speech and infirm of temper, and associates with men whose influence is bad, etc., while the father offers to such children a home in refined surroundings, their custody should be awarded to the father.
    It is not ability to provide physical comforts and care only that weighs in deciding such issue, but the moral surroundings of the children are to be considered.
    Hirschbeeg, P. J., clisseuted, with memorandum.
    Appeal by the relator, William M. Lawson, from an order of the Supreme Court, made at the Kings Dounty Special Term and entered in the office of the clerk of the county of Kings on the 27th day of July, 1905, denying the relator’s motion to.be awarded the custody of his minor children.
    
      Frank Harvey Field [R. Percy Chittenden with him on the brief], for the appellant.
    
      Edmund L. Mooney, for the respondent.
   Jenks, J.:

.The paramount consideration is the welfare of the children. (People ex rel. Elder v. Elder, 98 App. Div. 244, and authorities cited.) They are not of years so tender as to require award to the woman because the mother is essential to their daily living.

The record of life with the.mother is before us. It is not enough that the children have not been naked and have not been hungry. They should have received care like unto that which moves á parent riot only to clothe and feed his child, but to train him up in the way he should go. There has been a lack of such tutelage. A child is apt to pattern its life after that of its parent. These children are old enough to be impressed with their surroundings, to be molded by the course of their parents’ life, and to remember even what they may not now understand.

The lads have lived, a-life of hotels and boarding houses. Disinterested affiants describe the mother as gav, indiscreet,, intemperate of speech and infirm of temper. They depose that her habits are not good; that she rises late, keeps late hours abroad, and passes much time in the society -of men whose influence is. bad. In short,, these people sav that she. so deméans herself as to be censured' by prudent persons, both for her carriage' and for her neglect of her children, even to.their bodily cleanliness. Ho reason appears why We should discredit these affidavits, aiid no sufficient answer is. made to them.. This proceeding, then, must be determined by them, and we must, take the situation as they describe it. It is not necessary to attribute it to intention, for inattention may have caused it..

Though the father is the subject of counter attack, there is no such showing against him, He is affluent: Hé offers .his.married', sister’s home, apparently one of educated and respectable people, as a home for his children, and his sister assents. The presumption is clear enough that the lads will be far better off theré' than in" their present atmosphere. By this- decision we do hot prejudice the issues in the pending action for1 an absolute divorce. For the welfare of the children and the wrongdoing of ,a parent are quité different questions. .The trial of these, issues may reveal that the woman has been belied by these affiants, but we are clear that the question of custody as now presented must b'e determined in favor of the father. The■ mother, should■ not be entirely cut off'from access .to the children, but should be allowed‘to -visit them for two hours at a time,, twice in each week. - -

The order must be reversed;- and the, custody awarded to the . father,: with such provision for access by thé' mother as we have indicated.

"Woodward and Miller, JJ.,. concurred; Hirsghberg, P. J., dissented in separate memorandum; High, J., took no-part.

Hirschberg, P. J.

(dissenting):

I dissent. As the case contains counter charges, and a. former trial was decided in defendant’s favor; as the present custody- of the children is the result of the plaintiff’s abandonment of them;; as they are' very young and no serious- injury has apparently been-occasioned by their mother’s care of them, and as the case can be tried speedily on the merits if the plaintiff wishes, I think it would be wiser not to interfere with the discretion of the Special Term.

Order reversed, without costs, and custody awarded to the father, with such provision for access by the mother as indicated in the opinion of Jenks, J-.  