People ex rel. Parr v. Parr

The principal question in this case was decided by this court in People v. Corey, 46 Hun, 408. We see no reason to disturb that decision. The relator urges, however, that that part of the order which releases the child from the custody of the mother is not within the doctrine, in the case above cited. He claims that so much of the order is simply the exercise of the ordinary right to discharge from imprisonment one who is unlawfully conBned. But we cannot so consider it. There is no unlawful imprisonment in this case. The child would be properly within the custody either of the father or the mother, and a decision releasing the child from the mother’s custody is really a decision that the father is entitled to the custody. The contest is plainly one between the two parents, and any decision must uphold the right of one or of the other. Ttiat part of the order which discharges *264the child from the mother’s custody is as much within the condemnation of the case above cited as that which awards the custody to the father. The order, therefore, must be reversed in all respects, and the proceedings dismissed, without prejudice to any other proceeding before a proper tribunal. No costs to either party.

Landon and Ingalls, JJ., concur.