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(240 N. Y. 444)

81, notwithstanding, divorce decree awarding in re THORNE.

custody of child to the father because of motb

er's unfitness. (Court of Appeals of New York. July 15, 1925.)

Lehman, J., Hiscock, C. J., and Crane, J.,

dissenting. 1. Domicile cm 5-Legal domicile of child with that of father, though living apart from him.

Appeal from Supreme Court, Appellate Di. Even though child is, in fact, living apart vision, Second Department. from father, his legal domicile is nevertheless Application for letters of guardianship of with the father at common law.

the person and property of Joel Wolfe 2. Domicile C5-Domicile of infant becomes Thorne, Jr., an infant under the age of 14 that of mother on death of father.

years. From an order of the Appellate Divi. When the father dies, the mother becomes sion (212 App. Div. 654, 209 N. Y. S. 280), Secthe head of the family, and she may determine ond Department, reversing, as matter of law, where the infant may live, and his domicile an order of Surrogate's Court, which denied automatically in legal contemplation attaches a motion to vacate two orders appointing to hers,

guardian of the person and property of the 3. Divorce 302-Decree held to dispose only

infant, the appointed guardian appeals. Af

firmed. of custody of child as between husband and wife.

Chase Mellen and William Hazen Peck, Decree of divorce, awarding custody of in- both of New York City, for appellants. fant child to the husband, and finding that the John J. Kirby and Frank C. Laughlin, both wife was not competent or proper person to of New York City, for respondent. have custody of it, disposed of question of custody of child merely as between husband and wife.

POUND, J. By a judgment of divorce 4. Domicile Om5-Generally, infant has no le against Mary Casey Thorne, the respondent gal residence of his own.

herein, custody of the infant child of herGenerally, an infant has no legal residence self and her husband was awarded to the of his own whatever his place of abode may be. husband and she was found not fit, competent,

or a proper person to have custody of it. 5. Domicile 5Residence of infant may be Thereafter the husband died. His domicile

either that of father or mother, and, if in- and, therefore, that of the child up to the time fant lives with mother, her domicile is his. of his death was in Dutchess county. The

Residence of an infant is no longer ex- mother is domiciled in New York county. clusively that of the father, but it may be the The child is not in her actual custody. residence of either the father or the mother, Dutchess County Surrogate's Court, without and as the mother is the joint guardian of the child with the husband, if she selects her own citing her, appointed guardians of the person domicile and child lives with her, domicile and property of the infant. She thereafter of the mother is for the time being domicile of appeared and moved to vacate the letters of the child.

guardianship on the ground that the court

had no jurisdiction to appoint guardians; that 6. Divorce Om 302–Judgment held not con

clusive that wife was unfit to be appointed the Surrogate's Court of New York County guardian.

alone had such jurisdiction, for the reason Judgment of divorce, awarding custody of

that on the death of the father the domicile infant child to the husband, and finding that of the mother became the domicile of the the wife was not a fit, competent, or proper child. Her motion was denied. The Appelperson to have custody of it, might be evi- late Division reversed and granted an order dence to justify finding that wife was unfit | vacating the letters of guardianship. person to be appointed guardian after hus

The question is as to the jurisdiction of the band's death, but it was not conclusive.

Surrogate's Court of Dutchess County. Sur7. Domicile 4(1)-Infant cannot choose a rogate's Court Act (Laws 1920, c. 928) $ 174, residence.

provides: An infant cannot choose a residence.

"Where an infant has no guardian, a surro

gate's court has jurisdiction to appoint a gen8. Guardian and ward m 8Surrogate's Court eral guardian of an infant's person, or prop

of deceased father's domicile held without erty, or of both, in the following cases: jurisdiction to appoint guardian of infant.

"1. Where the infant is a resident of that Surrogate's court of father's domicile held county, or has sojourned in that county for at without jurisdiction to appoint guardian for at least one year immediately preceding the child on father's death, especially without cit- application. ing the mother who was domiciled in another "2. Where the infant is not a resident of the county, in view of Surrogate's Court Act, ss state, but has property, real or personal, sit174, 177, 179, and Domestic Relations Law, 8 | uated in that county."

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(148 N.E.) The appellants contend that because the | mestic Relations Law [Consol. Laws, c. 14] mother was, by the decree of divorce, ad- $ 81) were taken from her, but, when he judged to be an unfit person to have the cus- died, the domicile of the child was not left tody of the child, the general rule that in- in doubt. She became entitled as a parent fants have the domicile of the father and to apply in the county of her domicile for after his death the domicile of the mother letters of guardianship as against the world. ceases to apply and that the legal domicile of it does not follow that she is entitled to rethe infant remained in the county of the fa- ceive such letters. Under the circumstances ther's domicile. Their position rests wholly it may be assumed that the relatives and the on the proposition, not that the child had, in person actually in care and custody of the fact, a residence of its own in Dutchess coun-infant would be cited to show cause why she ty or was sojourning there, but that the law should not be appointed. Surrogate's Court continued his domicile in Dutchess county ex Act, $ 177. The surrogate may, in his disnecessitate as if both parents were dead and cretion, on her application, appoint another the child had acquired no domicile with his person, if there are reasons why the mother natural guardian. Lamar v. Micou, 114 U. should not be appointed. Surrogate's Court S. 218, 223, 5 S. Ct. 857, 29 L. Ed. 94. They Act, & 179. contend that on this proposition, Dutchess [4-8] The Surrogate's Court of Dutchess County Surrogate's Court had jurisdiction to County had no jurisdiction to appoint a genappoint a guardian, whether or not the child eral guardian unless the infant was a resiactually dwelt in Dutchess county. The dent of the county. Surrogate's Court Act, question is an interesting one which leads in- $ 174. Residence and domicile here mean the to the shadow land whence legal fictions have same. The infant, generally speaking, has their origin.

no legal residence of his own, whatever his [1, 2] Why at common law was the domi- place of abode may be. In this connection cile of an infant necessarily that of the fa- the extension of the mother's right of joint ther? Not because the child actually resides guardianship seems relevant as bearing on with him and is a part of his family; rather the practical result. The identity of person because of the patria potestas of the father, I of husband and wife is no longer a fetish of the tutelage of the child and the headship of the law. The residence of the infant is no the family of which the child is a part, the longer exclusively that of the father. It reciprocal rights and duties of father and may be the residence either of the father or child. "The legal inseparability of father the mother. As the mother is the joint guardand child is essential to their mutual legal ian of the children with the husband, if the obligations." Beale on Domicile of an In- wife has selected her own domicile, as she fant, 8 Cornell Law Quarterly, 103. Even may, whenever it is necessary or proper for though the child is in fact living apart from her to do so (Williamson v. Osenton, 232 U. S. the father, his legal domicile is nevertheless 619, 34 S. Ct. 442, 58 L. Ed. 758 ; Shute v. Sarwith the father. Murdock v. Ward, 67 N. Y. gent, 67 N. H. 305, 36 A. 282; Matter of Flor. 387. When the father dies, the dead hand ance, 54 Hun, 328, 7 N. Y, S. 578), and the does not hold the child at the father's domi- child lives with her, the domicile of the cile. The mother becomes the head of the mother is for the time being the domicile of family. She succeeds to his rights and du- the child. Her rights of custody are equal to ties. She may determine where the infant those of the father. In this case the mother's may live. His domicile automatically in legal rights were taken from her by the judgment contemplation attaches to hers. This right of divorce, but were revived as against the rests, not on the actual custody of the child, world by the death of the husband. My but on the right of the mother, the matria po- learned brother Lehman concedes that letters testas.

of guardianship should not have been grant[3] The decree of divorce merely disposed ed by the Dutchess County Surrogate's Court of the question of the custody of the child as without notice to her; that she has not been between husband and wife. This is the rule "judicially deprived of the custody of the in most jurisdictions that have passed on the child" in the sense that a citation need not be question, although the contrary doctrine is issued to her under Surrogate's Court Act not without support. Barnes v. Long, 54 Or. (section 177). The dilemma, it would seem, is 584, 104 P. 296, 25 L. R. A. (N. S.) 172, 21 this: Shall she be ignored as an outcast or Ann. Cas. 465, and cases cited. As between recognized as a mother? If she is not to be them the court held that she was not fit, com- ignored, if the child is still her child, her petent, or a proper person to have custody, of rights must be regarded.

Her right as a the infant child.

She ceased to be a mar- parent, not as a married woman, to the care ried woman and joint guardian of her child, and custody of the child, becomes superior to but she still remained his mother. Her rights that of all others, unless it should be shown of joint guardianship with her husband (Do- anew by the child's relatives or custodians

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that she is an unfit person to exercise such , al domicile of the mother, but after his guardianship. The judgment of divorce may death she could have changed her domicile. be evidence to justify a finding that she is un- Ordinarily she would, as sole guardian by fit, but it is not conclusive. It does not bar her nature of her children, have the right to their right to apply for letters of guardianship. Her custody, and the same reasons that form the domicile fixes the domicile of the child, "the basis for the rule that the domicile of the intechnically pre-eminent headquarters that fant is in law fixed by the domicile of his faevery person is compelled to have in order ther during his life should lead to the rule that certain rights and duties that have been that, after the father's death, the mother, by attached to it by the law may be determined.” | changing her own domicile, may ordinarily Holmes, J., in Williamson v. Osenton, supra, change the domicile of the infant. That rule at page 625, 34 S. Ct. 443. Otherwise the is supported by the great weight of authority. child has no domicile for an infant cannot Because of that rule the courts below have choose a residence. The child resides with held that at the death of the father the domhis mother in the contemplation of the law, icile of the mother automatically became the even though he be living elsewhere, until oth- domicile of the infant, though the mother's erwise disposed of by competent authority, marriage was dissolved and she had been de and that authority, so far as this case is con- prived of the custody of the infant. In that cerned, is the Surrogate's Court of the coun- conclusion I cannot concur. ty of the mother's domicile.

While the domicile of the infant does not It is urged that practical difficulties are in depend either upon the physical presence of the way of the application of this rule of dom- the infant or upon the infant's intention, the icile to cases where the mother is a nonresi- rules governing the infant's domicile are not dent and the child is in the state. They may entirely artificial or arbitrary. The law be easily surmounted. If the mother is a non- places the infant's home at the home of his resident of the state, but the infant has prop- pa rent or parents, because to some extent it erty, real or personal, situated in the county, regards the family as inseparable, and that is the Surrogate's Court of the county may ap- the place where an infant would naturally repoint a guardian (Surrogate's Court Act, s side, since the infant may not decide for him. 174), so, if the mother lives in China or Peru, self where he will permanently reside. That a guardian might be appointed here if such residence, once fixed, remains the infant's jurisdictional facts appeared. If a mother residence until changed by removal, actual or in China or Peru were not asserting her constructive, to another home. The reason rights of guardianship, the Surrogate's Court for the rule that an infant's domicile after of the county of actual sojourn of the child the father's death is the domicile of the mothmight have jurisdiction to appoint a guardian. er completely fails, unless the mother also of the person and the property. Surrogate's has at the time lawful custody of the child, Court Act, § 174. Nor is the jurisdiction of unless in law she is the head of the family. the Surrogate's Court exclusive. The juris- If one parent has abandoned the child, if he diction of the Supreme Court to appoint or she has been deprived of the right of cusguardians of infants within the jurisdiction tody and may not, until custody is restored does not depend upon the legal domicile of the by the courts, determine where the child shall infant if the infant is actually dwelling with reside, then both réason and practical considin the state. Matter of Hubbard, S2 N. Y. erations dictate that, until the courts have 90. But here we have to consider only the acted, the domicile of the child remains unjurisdiction of the Surrogate's Court of changed. Dutchess county in this case, and we conclude In the present case the courts decreed in that it was without jurisdiction.

the divorce action that the father should The order should be atfirmed, with costs. have custody of the child. Death of the fa

ther has intervened and ended his custody. LEHMAN J,, (dissenting). The domicile of So far at least the decree can no longer have the infant during the life of his father, Joel force. The decree, however, did more; it dis. Wolfe Thorne,

unquestionably in solved the marriage and it ended the mothDutchess county, where his father lived. er’s joint right to custody with the father. It By the decree which dissolved the marriage is said that the mother's right to the custody of his parents, sole custody of the infant of the child as the surviving parent came inwas awarded to the father, and, since the to existence when the father died, eren infant is in law incapable of creating an in- though the decree of divorce ended her joint dependent domicile, his domicile followed guardianship: that she is the guardian by nathat of the parent, in whom custody and ture, even without appointment by the court. right of control was vested. If there had When a court passes upon the custody of the been no divorce, the domicile of the father child in a divorce action, its first considerawould have been in law also the matrimoni- tion should be, not the rights of the parents,

was

(148 N.E.) but the welfare of the child. The right found | should be given notice of any proceedings ed in nature of the mother to have custody of which might affect that child's permanent her child is recognized by the law, but a custody. mother may deprive herself of that right by It seems to me that the opposite view is her own wrong, and here the court has de- bound to produce anomalous and impractical termined that the mother was unfit to have results. If the mother makes no claim to such custody. After her husband's death, un- guardianship, is the child without any domitil the custody of the child is awarded to cile? If the guilty parent moves to a jurissome one else, she may have the right to urge diction where different standards of moral that, despite the fact that she was deprived conduct prevail, and there applies for guardof joint guardianship of the child, its custody ianship of the child, must the courts of this should be awarded to her rather than to a state recognize the decree of the foreign third party. For that reason I think that courts, though the child did not, by his own she should have received notice of the appli- act, or the act of the innocent parent, ever cation for the appointment of a guardian, submit to the jurisdiction of the foreign and that the motion to vacate the letters of courts? Though the courts of this state guardianship issued without notice to her might, under the provisions of the Surroshould have been granted. While, under the gate's Court Act (section 174), appoint a provisions of section 177 of the Surrogate's guardian under some circumstances, even if Court Act, citation is not necessary to a par- the domicile of the child is elsewhere, yet the ent who is "judicially deprived of the custody jurisdiction is not complete and the courts of of the child," I think that it appears from the place of the child's domicile remain in the context that the Legislature did not in- general the proper tribunals to determine the tend to include a case where the indirect ef- right to the custody of the child. The fact fect of the award of the custody of a child to that in this case the dispute is as to the one parent was to deprive the other parent of jurisdiction of the courts of two counties its custody. None the less, that was the effect within the state does not change the principle

involved. The domicile of the child at the of the decree of divorce against this defend- death of the father, who had the exclusive ant. It deprived her, in fact, of the custody right to its custody, was in Dutchess county. of the child. She lost the right founded in Though the mother has an interest in the 'nature and recognized by law, because the child's welfare and after the father's death court has found that she broke her marriage is not precluded from asking that the cusvows, and was not "a fit or competent or tody of the child be awarded to her, yet, unproper person to have the custody of the in- til the custody is awarded, neither she nor fant child.” Though the father can no longer any one else has any right in law to control care for the child, custody may not, without the movements of the child or to insist that disregard of the child's welfare, be restored her home be the home of the child, and thereto the mother without further judicial in- fore she cannot change the child's domicile. quiry. Unless and until custody is thereafter It follows that, though the order denying awarded to her, she has no control of the the motion to vacate the letters of guardianchild, and, having no control, cannot change ship should have been granted, jurisdiction to its domicile. Analogy may be found in the appoint is still in the Surrogate's Court of provisions of section 111 of the Domestic Re- Dutchess county. lations Law in regard to consent to adoption. Consent of a parent who has been divorced

CARDOZO, MCLAUGHLIN, and ANfor his or her adultery is not a necessary pre- DREWS, JJ., concur with POUND, J. requisite to the adoption, but notice is neces HISCOCK, C. J., and CRANE, J., concur sary. Here we may find support for the view with LEHMAN, J., dissenting. that the decree of divorce deprives the parent of any rights to custody, but yet the parent Order affirmed, with costs.

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(240 N. Y. 455)

the Oklahoma Producing & Refining CorporaPEOPLE ex rel. STILWELL V. HANLEY. tion of America belonging to a customer

named Lyendecker. For this offense the de(Court of Appeals of New York. July 15, fendant was indicted for larceny in the first 1925.)

degree, embezzlement, also known as first

degree larcený, and for violating section 936 Extradition am 19-Finding of English magis- of the Penal Law. The indictment contained trate that charge of hypothecation of cus

three counts. The jury acquitted the defendtomers' securities was extraditable offense conclusive,

ant of the larceny counts, and found him

guilty of hypothecating his customers' seIn extradition proceedings under Ashburton curities without authority. Treaty of 1842, as supplemented in 1889, where charges against accused and evidence in sup. London, England, where he remained until

After the firm's failure, Stilwell went to port of them were sent to English authorities, English magistratė, in determining that of- he was extradited and brought back to New fenses charged, including violation of Penal York for trial on this indictment. On the Law, 8956, for hypothecation of customers' trial and by this proceeding he insists that he securities, were offenses requiring extradition was not extradited for violating section 956 under the treaty, will be presumed to have done of the Penal Law, that it is not one of the his duty, and his determination is conclusive extraditable offenses specified in the treaties upon courts in this country that offenses alleged between the two countries, and that there. constitute an extraditable offense.

fore the Court of General Sessions had no Appeal from Supreme Court, Appellate Di. jurisdiction to try him for such a crime.

What are the provisions of the treaties vision, First Department.

permitting the return of fugitives from jusApplication for habeas corpus by the Peo- tice? The Ashburton Treaty, contracted in ple of the State of New York on the rela- 1842, reads: tion of P. Albert Stilwell, directed to John

“Article X. J. Hanley, Warden of the City Prison, Bor

"It is agreed that the United States and ough of Manhattan. From an order of the her britannic majesty shall, upon mutual requiAppellate Division (208 N. Y. S. 921) which sitions by them, or their ministers, officers, or affirmed an order of the Special Term (124 authorities, respectively made. deliver up to Misc. Rep. 189, 207 N. Y. S. 176), dismissing justice all persons who, being charged, with the the writ and remanding relator to custody, crime of murder, or assault with intent to com

mit murder, or piracy, or arson, or robbery, petitioner appeals. Affirmed.

or forgery, or the utterance of forged paper, Battle, Vandiver, Levy & Van Tine, of New committed within the jurisdiction of either, York City (Almuth C. Vandiver, of New York shall seek an asylum, or shall be found, within

the territories of the other: Provided that this City, of counsel), for appellant. Joab H. Banton, Dist. Atty., of New York inality as, according to the laws of the place

shall only be done upon such evidence of crimCity (William B. Moore, Deputy Asst. Dist. where the fugitive or person so charged 'shall Atty., of New York City, of counsel), for re- be found, would justify his apprehension and spondent.

commitment for trial, if the crime or offense had there been committed: And the respec

tive judges and other magistrates of the two CRANE, J. In December of 1924 the de- governments shall have power, jurisdiction, fendant was convicted in the Court of Gen- and authority, upon complaint made under oath, eral Sessions, New York City, of violating to issue a warrant for the apprehension of the section 956 of the Penal Law (Consol. Laws, fugitive or person so charged, that he may be c. 40), entitled “Hypothecation of Customers' brought before such judges or other mag. Securities.” He has sought his release from istrates, respectively, to the end that the eriprison by this habeas corpus proceeding, sidered; and if, on such hearing, the evidence

dence of criminality may be heard and conwherein he alleges that the Court of General be deemed sufficient to sustain the charge, it Sessions had no jurisdiction to try him for shall be the duty of the examining judge or this offense. He raises this objection under magistrate to certify the same to the proper the treaties existing between Great Britain executive authority, that a warrant may issue and the United States regarding the extradi- for the surrender of such fugitive. The er. tion of criminal offenders.

pense of such apprehension and delivery shall Stilwell, Leffler & Lowe was a copartner- the requisition, and receives the fugitive.” 8

be borne and defrayed by the party who makes ship doing a stock brokerage business in New Stat. 576. York City until its bankruptcy in July, 1922. The defendant was senior member of the This was supplemented in 1889 by includ. fir B в re its failure the firm had wrong- 'ing additional offenses and modified proces fully sold and disposed of shares of stock in dure as follows:

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