People ex rel. Riche v. Sisters of St. John the Baptist Novitiate & Boarding School

In obedience to the writ of habeas corpus, the respondent and the twenty-year-old daughter of the relator appeared before the justice of the Supreme Court presiding at the Special Term. It appears from the printed papers that the respondent presented two affidavits in opposition to the relator’s demand that the custody of the young woman" be awarded to the relator for the purpose of placing her in a sanitarium for observation as to her mental condition, one of the affidavits being made by the daughter and the other by one of the sisters in charge of the novitiate and boarding school. A copy of these affidavits was delivered to the relator or his counsel, and he asked permission to file a traverse to said affidavits, which was granted. The traverse is printed in the papers on appeal, but the affidavits, presumably stating the objections of the respondent and the daughter to the application, are not printed, nor are they recited in the order dismissing the writ. It appears that the respondent was represented on the return of the writ by a lady who subsequently appeared before this court on the call of the calendar, stating that she was not a lawyer, and no points are filed on behalf of the respondent on this appeal nor was it represented by counsel. The counsel for the relator on this appeal seeks to excuse the failure to print these affidavits, or to recite them in the order dismissing the writ, by stating that they did not constitute a legal return to the writ, but they appear to have been regarded by relator as sufficient to require the filing of a traverse, and of course they should have been included in the printed papers on relator’s appeal. •<

It appears from the printed record that the learned justice before whom the writ was returnable examined the daughter. He then made the following statement appearing in the stenographer’s minutes of the hearing: “ The Court: This girl understands just what she is doing and where she wants to go. She is at that time of life where she may select for herself the place she wants to go.

I see no necessity for any medical examination at all. She is twenty years of age, going on twenty-one, and apparently knows her own mind; and she wants to stay where she is. The father,, by his conduct, .precludes his right of visitation, and that is his. own fault. I will dismiss the writ.”

Counsel for the relator stated that she would like to have medical *693witnesses heard as to the mental condition of the girl, that she wanted the girl placed upon the stand for examination as to her mental capacity. The court allowed the counsel for relator to file any affidavits or other proof she desired, but said: “ I will accept in evidence all of the documents you mention. I shall not take testimony in respect to this girl’s mental condition. She is apparently strong and healthy and knows what she is doing, is capable of understanding the difference between right and wrong, is able, apparently, to consult with counsel, and has the right to determine where she wants to go. There is nothing to indicate that the place where she is now housed is detrimental to her health or welfare, and nothing can be done. She is between twenty and twenty-one years of age. The father has no claim on her against her own will. I am satisfied she has her own will and has her own ability to determine. I will dismiss the writ.”

The learned justice stated his conclusion, from the examination of the girl, that she had full mental capacity, and that she had the right to determine her residence for herself as long as she was well cared for and her mental, physical and moral welfare was properly protected.

It is apparent from the printed papers and the points of the appellant that the relator and his wife are living apart, and that on prior occasions he has been refused the custody of the girl in habeas corpus proceedings.

We see no reason for interfering with the determination of the learned justice who saw and examined the girl. If the relator desired the examination of the girl by the justice taken down by the stenographer, he should have requested that this be done, but, like the affidavits in opposition to the writ, the examination is not in the printed papers. Certainly the respondent and the girl cannot be charged with the duty of preparing or presenting the appellant’s record.

We think the order dismissing the writ of habeas corpus should be affirmed.

Kelly, P. J., Manning, Young, Lazansky and Hagabty, JJ., concur.

Order dismissing writ of habeas corpus affirmed, without costs.