Opinion
November, 1933.
Order reversed on the law and the facts, without costs, writ of habeas corpus sustained, and the custody of the child, Catherine Hausler, awarded to her father, William Hausler, on the ground that there has been no abandonment of the child on his part ( Matter of Bistany, 209 App. Div. 286; affd., 239 N.Y. 19); that his moral character and his ability to support and maintain his daughter in a good home are admitted; and that his right to the custody of the child is superior to that of collateral relatives. ( People ex rel. Boulware v. Martens, 232 App. Div. 258; affd., 258 N.Y. 534.)
The Special Term, on conflicting testimony, found as a matter of fact "that there was a complete abandonment of the child by the relator and a relinquishment of his parental claim" (fol. 253). The court also found "that the best interests of the child will be served by permitting her to remain with those to whom she is attached by the closest ties of love and affection and who have bestowed upon her the loving care of parents" (fol. 254). I think that these findings should not be disturbed, and I dissent and vote to affirm on the opinion of Dodd, J., at Special Term. Scudder, J., not voting.