In the Matter of the Application of Maud E. Mather, Respondent, for a Writ of Habeas Corpus Directed to Harry B. Mather, Appellant, to Bring up the Body of Doris L. Mather, an Infant

In the Matter of the Application of Maud E. Mather, Respondent, for a Writ of Habeas Corpus Directed to Harry B. Mather, Appellant, to Bring up the Body of Doris L. Mather, an Infant. First Department, November 4, 1910. Parent 'and child — habeas corpus to determine custody — practice — examination as to facts. On habeas corpus brought under section 70 of the Domestic Relations Law to determine the custody of a child as between parents living in a state of separation without divorce, the proceedings should be in conformity with the usual rules of practice governing such writ. On the production of the child before the court there must be an examination into the facts which the return sets forth as a reason why the custody should not be awarded to the relator. It is improper to award custody without such investigation. ' Arpead by Harry B. Mather from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of July, 1910, sustaining a writ of habeas corpus and awarding t.he custody of an infant child to the petitioner. Theodore S. Rumney, Jr., for the appellant. Franklin Bien, for the respondent. [MAJORITY — Per Curiam :] Per Curiam : The relator applied to a justice of the Supreme Court for a writ of habeas corpus under section 70 of the Domestic Relations Law (Consol. Laws, chap. 14; Laws of 1909, chap. 19). That section provides that a husband or wife, being an inhabitant of this State, living in a state of separation, without being divorced, who has a minor child, may apply to the Supreme Court for a writ of habeas corpus to have such minor child brought before such court; and on the return thereof, the court, on due consideration, may award the charge and custody of such child to either parent for such time, under such regulations and restrictions, and with such provisions and directions, as the case may require. On the return of this writ the appellant filed a return alleging certain facts which he claimed made it improper to award the custody of the child to the petitioner, whereupon the petitioner filed a traverse to the return, and upon the petition, the return, and the traverse the case came before the Special Term. So far as the record discloses the court without further-investigation entered an order awarding the custody of the child to the petitioner, and from that order the appellant appeals. When a writ of habeas corpus comes before the Special Term under this provision it. must -be carried on in conformity- with the rules of practice governing such a wilt. (People ex rel. Keator v. Moss, 6 App. Div. 414.) Section 2031 of the Code of Civil Procedure provides that the court or judge before which or whom a prisoner is brought by virtue of a writ of habeas corpus must immediately after the return of such writ • examine into the facts alleged in the return and into the cause of the imprisonment. So far as this record discloses there was no examination into the facts alleged in the return. We think that upon the record as it appears the parties were entitled to an examination of the facts before a final order should be made. The order appealed from should, therefore, be reversed and a reference directed to the official referee to inquire into the facts alleged in the return, and report the same, with his opinion thereon, to the Special Term. Pending the final determination of this proceeding, the custody of the infant °to be awarded to the relator. Present — Ingraham, P. J., McLaughlin, Laughlin, Clarke and Scott, JJ. Order reversed and reference ordered to official referee as stated in opinion. Settle order on notice.