The People ex rel. Lucy Allen, Respondent, v. William H. Allen, Appellant

The People ex rel. Lucy Allen, Respondent, v. William H. Allen, Appellant. (Argued March 15, 1887; decided March 25, 1887.) This was an appeal from an order of General Term, affirming an order of Special Term in habeas corpus proceedings, awarding to the relator the custody of her three infant children. The relator and defendant were formerly man and wife, and lived in Illinois. The relator commenced an action for divorce in that State; while it was pending, defendant came to this State bringing with him their children; the action resulted in a decree granting an absolute divorce, and awarding to the relator the care and custody of the children. The following is the mem. of the opinion : “We dismiss this appeal for the reason that the courts below, upon a view of all the existing facts relating to the welfare and interests of the infants, exercised their discretion in awarding to the mother the custody of the children; and, in so doing, gave to the Illinois decree not the force of an estoppel, or the conclusive effect sometimes due to a judgment, but simply regarded it as a fact or circumstance bearing upon the discretion to be exercised without dictating or controlling it. “ Appeal dismissed, with costs.” Theodore Bacon for appellant. John M. Davy for respondent. [MAJORITY — Per Curiam mem.] Per Curiam mem. for dismissal of appeal. All concur. Appeal dismissed.