
    The People of the State of New York, Respondent, v. William Kelley, Appellant.
    County Court, Monroe County,
    January 31,1963.
    
      Edward P. Loeser for appellant. Stephen P. Morris and John J. Conway, Jr., District Attorney (Stephen K. Pollard of counsel), for respondent.
   George D. Ogdeft, J.

William Kelley was convicted of being a disorderly person, in violation of subdivision 1 of section 899 of the Code of Criminal Procedure, which renders guilty of being disorderly persons “ Persons who actually abandon their wives or children ” (italics .supplied). The record on appeal in this case contains no testimony that defendant is, in fact, the husband of the complainant, or that the children specified in the information are, in fact, his children. Without such proof of a valid marriage the prosecution under this section must fail and the information be dismissed (People v. Kay, 141 Misc. 574). An additional factor dictating a reversal of this judgment is the statement by the learned Justice in his opinion “ that justice can best be served by considering the welfare of the wife and two children in the family as the primary factor, rather than the fact that the defendant may or may not have committed an actual crime. ’ ’

The judgment of conviction is reversed, the information is dismissed, and the defendant’s bail is exonerated.  