(148 N.E.) It seems to me that the opposite view is bound to produce anomalous and impractical results. If the mother makes no claim to guardianship, is the child without any domicile? If the guilty parent moves to a jurisdiction where different standards of moral conduct prevail, and there applies for guardianship of the child, must the courts of this state recognize the decree of the foreign courts, though the child did not, by his own act, or the act of the innocent parent, ever submit to the jurisdiction of the foreign courts? Though the courts of this state might, under the provisions of the Surrogate's Court Act (section 174), appoint a guardian under some circumstances, even if the domicile of the child is elsewhere, yet the jurisdiction is not complete and the courts of the place of the child's domicile remain in general the proper tribunals to determine the The fact right to the custody of the child. that in this case the dispute is as to the jurisdiction of the courts of two counties within the state does not change the principle 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 her own wrong, and here the court has determined that the mother was unfit to have such custody. After her husband's death, until the custody of the child is awarded to some one else, she may have the right to urge that, despite the fact that she was deprived of joint guardianship of the child, its custody should be awarded to her rather than to a third party. For that reason I think that she should have received notice of the application for the appointment of a guardian, and that the motion to vacate the letters of guardianship issued without notice to her should have been granted. While, under the provisions of section 177 of the Surrogate's Court Act, citation is not necessary to a parent who is "judicially deprived of the custody of the child," I think that it appears from the context that the Legislature did not intend to include a case where the indirect effect of the award of the custody of a child to one parent was to deprive the other parent of its custody. None the less, that was the effect 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 for his or her adultery is not a necessary prerequisite to the adoption, but notice is necessary. Here we may find support for the view that the decree of divorce deprives the parent of any rights to custody, but yet the parent involved. The domicile of the child at the CARDOZO, MCLAUGHLIN, and ANDREWS, JJ., concur with POUND, J. HISCOCK, C. J., and CRANE, J., concur with LEHMAN, J., dissenting. Order affirmed, with costs. (240 N. Y. 455) PEOPLE ex rel. STILWELL v. HANLEY. the Oklahoma Producing & Refining Corporation 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.) Extradition 19-Finding of English magistrate that charge of hypothecation of customers' securities was extraditable offense conclusive. In extradition proceedings under Ashburton Treaty of 1842, as supplemented in 1889, where charges against accused and evidence in support of them were sent to English authorities, English magistrate, in determining that offenses charged, including violation of Penal Law, § 956, for hypothecation of customers' securities, were offenses requiring extradition under the treaty, will be presumed to have done his duty, and his determination is conclusive upon courts in this country that offenses alleged constitute an extraditable offense. degree, embezzlement, also known as first degree larceny, and for violating section 956 of the Penal Law. The indictment contained three counts. The jury acquitted the defendant of the larceny counts, and found him guilty of hypothecating his customers' securities without authority. After the firm's failure, Stilwell went to London, England, where he remained until he was extradited and brought back to New York for trial on this indictment. On the trial and by this proceeding he insists that he was not extradited for violating section 956 of the Penal Law, that it is not one of the extraditable offenses specified in the treaties between the two countries, and that therefore the Court of General Sessions had no Appeal from Supreme Court, Appellate Di- jurisdiction to try him for such a crime. vision, First Department. Application for habeas corpus by the People of the State of New York on the relation of P. Albert Stilwell, directed to John J. Hanley, Warden of the City Prison, Borough of Manhattan. From an order of the Appellate Division (208 N. Y. S. 921) which affirmed an order of the Special Term (124 Misc. Rep. 189, 207 N. Y. S. 176), dismissing the writ and remanding relator to custody, petitioner appeals. Affirmed. Battle, Vandiver, Levy & Van Tine, of New York City (Almuth C. Vandiver, of New York City, of counsel), for appellant. Joab H. Banton, Dist. Atty., of New York City (William B. Moore, Deputy Asst. Dist. Atty., of New York City, of counsel), for respondent. CRANE, J. In December of 1924 the defendant was convicted in the Court of General Sessions, New York City, of violating section 956 of the Penal Law (Consol. Laws, c. 40), entitled "Hypothecation of Customers' Securities." He has sought his release from prison by this habeas corpus proceeding, wherein he alleges that the Court of General Sessions had no jurisdiction to try him for this offense. He raises this objection under the treaties existing between Great Britain and the United States regarding the extradition of criminal offenders. What are the provisions of the treaties permitting the return of fugitives from justice? The Ashburton Treaty, contracted in 1842, reads: "Article X. "It is agreed that the United States and her britannic majesty shall, upon mutual requisitions by them, or their ministers, officers, or authorities, respectively made, deliver up to justice all persons who, being charged, with the crime of murder, or assault with intent to commit murder, or piracy, or arson, or robbery, or forgery, or the utterance of forged paper, committed within the jurisdiction of either, shall seek an asylum, or shall be found, within the territories of the other: Provided that this shall only be done upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged shall be found, would justify his apprehension and commitment for trial, if the crime or offense had there been committed: And the respective judges and other magistrates of the two governments shall have power, jurisdiction, and authority, upon complaint made under oath, to issue a warrant for the apprehension of the fugitive or person so charged, that he may be brought before such judges or other magistrates, respectively, to the end that the evidence of criminality may be heard and considered; and if, on such hearing, the evidence be deemed sufficient to sustain the charge, it shall be the duty of the examining judge or magistrate to certify the same to the proper executive authority, that a warrant may issue for the surrender of such fugitive. The expense of such apprehension and delivery shall be borne and defrayed by the party who makes the requisition, and receives the fugitive." 8 Stat. 576. Stilwell, Leffler & Lowe was a copartnership doing a stock brokerage business in New York City until its bankruptcy in July, 1922. The defendant was senior member of the This was supplemented in 1889 by includfirm. Before its failure the firm had wrong- ing additional offenses and modified procefully sold and disposed of shares of stock in dure as follows: 1 "Article I. (148 N.E.) In accordance with these treaty terms, the President of the United States on the 13th day of November, 1923, issued his warrant to certain named officers of the New York police force, authorizing them to receive Stilwell from Great Britain and bring him back for trial. Annexed to the warrant were all the extradition papers, including exemplified copies of the sections of the New York Penal Law under which the indictment was found; properly certified depositions of the witness, showing that these provisions of law had been violated by the defendant; also a copy of the indictment and the warrant of arrest issued thereon. The formal request of the district attorney to the Governor of the state, and the application of the Governor to the Secretary of State of the United States for the requisition of Stilwell were also a part of the requisition papers. All of the documents were presented to the magistrate in the Bow Street Magistrate's Court, London. He examined them, read the depositions, and directed the detective from Scotland Yard, "who had the defendant," to turn him over to the United States agents. The British authorities issued a warrant for Stilwell's return, which was given to the detective from Scotland Yard. These are the facts as they appear in the record on this appeal. that Stilwell was charged "with the crimes of embezzlement and fraud by a bailee, agent, and trustee (known in the laws of the state of New York as grand larceny in the first degree and violation of section 956 of the Penal Code of the state of New York)." He also had a copy of the indictment containing the three counts, the third setting forth fully the acts constituting a violation of section 956 of the Penal Law, in that the defendant as a broker had in his possession stock of the Oklahoma Producing & Refining Corporation of America belonging to a customer named Robert E. Lyendecker, and that the defendant for his own benefit disposed of it without the owner's consent. The magistrate must also have read the depositions constituting the evidence sustaining these charges. He formed his conclusions and then acted. He decided that, on such evidence, the prisoner would be committed for trial, had the thing happened in England. This means that the facts alleged constituted a crime under the laws of England. The point which the relator makes is that while larceny and embezzlement are conceded to be crimes in both countries, there is no evidence to show that the wrongful hypothecation of stock certificates by a broker is a crime in England as well as in New York. Article 1 of the treaty of 1889 above given refers to fraud by a bailee or agent made criminal by the laws of both countries. We must presume that the London magistrate did his duty, and found that the facts alleged in the third count of the indictment, and referred to in the President's warrant as "violation of section 956 of the Penal Code," would also violate the law of England, if committed there. If they would not, he should not have certified for the prisoner's surrender. The papers clearly stated that Stilwell would be tried for hypothecating securities if he were returned. The higher courts might have reviewed the determination of this magistrate; we cannot. His determination in the absence of fraud is conclusive upon the courts of this country. Under the terms of the treaty the duty of determining whether the charge made against the relator came within the provisions of the treaty was laid upon the English magistrate and executive authorities, and their decision cannot be questioned. The officials of both countries must concur in the conclusion that the offense charged is includ When these papers were handed to the magistrate in London, what was his duty? According to the treaty he was to have the prisoner brought before him, examine the evidence of criminality to see if it would justify commitment for trial in England, if the offense had been committed there, and, if satisfied, to certify the fact to the prop-ed in the crimes named or referred to in er executive authority so that a warrant might issue for the surrender of Stilwell. In the performance of this duty, what did the magistrate read and examine? He had in his hands the President's warrant stating the treaty before the fugitive will be surrendered. The chief executive of the United States, acting through the Secretary of State, requisitioned for the return of Stilwell as an offender against the laws of New York state, specifying section 956 of the Penal | always have the same nomenclature in difLaw as the crime he had committed. The ferent countries; they are not all the same authorities of this country certainly be- in our various states. Thus it is stated in lieved the section one which was covered by Russell on Crimes and Misdemeanors (8th the treaty. The proper officials of England Edition) vol. 2 (1923) p. 1187, that a person examined the charge and surrendered the in lawful possession of personal property as prisoner. Surely they must have acquiesced bailee who fraudulently converts the same in this interpretation, and have considered to his own use steals the same and is guilty that the crime defined in section 956 was an of larceny. Hypothecation of securities unextraditable offense as well as the larceny der the circumstances of this third count charges. would apparently be larceny in England. Thus the offense is a crime in both countries. The orders appealed from must, therefore, be affirmed. These determinations by the judiciary and the executives of both countries are conclusive upon two points: First, that he was extradited for the crime described in section 956 of the Penal Law of this state; HISCOCK, C. J., and CARDOZO, POUND, and second, that it was an extraditable of- MCLAUGHLIN, ANDREWS, and LEHMAN, fense according to the treaties between this | JJ., concur. country and Great Britain. Cohn v. Jones (D. C.) 100 F. 639; Matter of Rowe, 77 F. Rep. 161, 23 C. C. A. 103; Greene v. United States, 154 F. 401, 85 C. C. A. 251. The cases of United States v. Rauscher, 119 U. S. 407, 7 S. Ct. 234, 30 L. Ed. 425, and People ex rel. Young v. Stout, 81 Hun, 336, 30 N. Y. S. 898, affd., 144 N. Y. 699, 39 N. E. 858, are not applicable. In the Rauscher Case the defendant was extradited upon the charge of murder on the high seas under section 5339 of the United States Revised Statutes (U. S. Comp. St. § 10445). He was not tried on that charge, but rather upon an indictment under a different section, section 5347 of the Revised Statutes (section 10464), charging him with cruel and unusual punishment of the same man whom he was alleged to have murdered. The crime for which he was tried was not specified in the requisition papers. He was extradited for one offense and tried for an entirely different crime. So, also, in the Young Case. The defendant was indicted in New York for assault in the first degree, and also assault in the second degree. He was extradited solely for the specified crime of "assault with intent to commit murder." On his trial, he was acquitted of assault in the first degree, and convicted of assault in the second degree. On habeas corpus proceedings he was discharged on the ground that the court had no jurisdiction to try him for a crime not specified in the treaty, and for which a demand had not been made. Personally, I doubt if the courts would go so far in this day of better understanding and more friendly relationships between these two countries. The wrongful pledging of securities by a broker for his own use and purposes is so closely akin to larceny, even if it be not larceny, that we would be much surprised to find that such acts constituted no offense in Great Britain. Criminal offenses do not Andrews and Lehman, JJ., dissenting. vision, First Department. Suit by David Simons against George L. Berry, as president of the International Printing Pressmen's and Assistants' Union of North America. From a judgment of the Appellate Division (211 App. Div. 704, 208 N. Y. S. 204) reversing an order of the Special Term denying, defendant's motion for judg ment on the pleadings and granting the motion and dismissing the complaint, the plaintiff appeals. Reversed. A. Spencer Feld, of New York City, for ap- CARDOZO, J. From the inartificial and indefinite allegations of the complaint, we think these facts are to be gathered in obedience to the rule that exacts a liberal con (148 N.E.) satisfying court that something more than mere examination of a long account will be -involved. struction: Plaintiff was a member in good of knowledge or information was not enough standing of the defendant's union, an unin- to make out a right to a compulsory reference. corporated association, and subject to expul- 3. Reference 27-Plaintiff has burden of sion only upon written charges, and after a hearing upon notice. No charges have been made against him, and no hearing has been given. None the less, the defendant's officers have notified the other members to refuse to work with him on the ground that he has ceased to be a member, and in so doing have made it impossible for him to find employment in his trade. The charge in brief is that he has been denied the privileges of membership, though never legally expelled. Plaintiff, applying for a reference, has burden of satisfying court that something more will be involved than mere formal proof of existence of a long account. 4. Reference 8(1)-Plaintiff held not entitled to compulsory reference. In suit to recover 41 semiannual installA cause of action is here stated for equitable ments of interest on a mortgage, and 21 separelief. So far as the complaint shows, there fendant had agreed to pay, pleaded as 62 separate premiums for fire insurance, which deis no provision in the constitution or the by-rate causes of action, with defendant denying laws whereby plaintiff has a remedy by ap-knowledge or information, plaintiff held not enpeal to any organ within the association. titled to compulsory reference under Civil Loubat v. LeRoy, 40 Hun, 546, 549. Equity Practice Act, § 466. will enjoin the denial to a member of the privileges of membership, where the denial, if continued, will work irreparable injury? Appeal from Supreme Court, Appellate Division, Second Department. Action by the Brooklyn Public Library against the City of New York. From an The judgment of the Appellate Division should be reversed, and the order of the Special Term affirmed, with costs in the Appel-order of the Appellate Division of the Su late Division and in this court. HISCOCK, C. J., and POUND, LIN, and CRANE, JJ., concur. preme Court (212 App. Div. 878, 208 N. Y. S. 837) in the Second Judicial Department, MCLAUGH-affirming an order of the Special Term, granting plaintiff's motion for the appointment of a referee, defendant appeals by permission, and the Appellate Division certifies a question. Order of Appellate Division and Special Term reversed. Question answered in negative. ANDREWS and LEHMAN, JJ., dissent. Judgment reversed, etc. (240 N. Y. 465) The Appellate Division certified the following question: "Does the record make out a proper case BROOKLYN PUBLIC LIBRARY v. CITY for the granting of an order for a compulsory OF NEW YORK. (Court of Appeals of New York. July 15, 1925.) 1. Reference 8(1)-Compulsory reference not ordered on showing that several items of an account will become centers of independent controversy: reference?" George P. Nicholson, Corporation Counsel, of New York City (John F. O'Brien and Elliot S. Benedict, both of New York City, of counsel), for appellant. Meier Steinbrink and Frank E. Johnson, both of Brooklyn, for respondent. CARDOZO, J. Plaintiff and defendant executed a contract on June 5, 1903, whereby defendant undertook to appropriate and pay such sums as were requisite for the proper maintenance of the libraries under plaintiff's administration, including therein insurance A compulsory reference will not be ordered on the showing of a mere possibility that several items of an account will become centers of independent controversy, it being necessary that there be a reasonable probability, when courses and tendencies of trial are charted in advance, that such will be the true develop-charges and interest upon mortgages. It is ment. 2. Reference 8 (6)-Reference not justified, because defendant had put plaintiff to its proofs. In suit to recover 41 semiannual installments of interest on mortgage, and 21 separate premiums paid for fire insurance, that defendant put plaintiff to its proofs by denial stated in the complaint that between October 30, 1903, and October 29, 1923, plaintiff paid to the Brooklyn Trust Company 41 semiannual installments of interest on a mortgage covering the library building, and on 21 separate occasions paid premiums for fire insurance. This action is brought to recover the payments so made, each semi |