Allen v. Allen

• Decision Date: 25 March 1887
• Citation: 11 N.E. 143,105 N.Y. 628
• Parties: PEOPLE ex rel. ALLEN v. ALLEN.
• Court: New York Court of Appeals Court of Appeals

105 N.Y. 628

11 N.E. 143

PEOPLE ex rel. ALLEN

v.ALLEN.¹

Court of Appeals of New York.

March 25, 1887.

Appeal from an order of the general term of the supreme court in the Fifth department, affirming an order of the special term, in proceedings by habeascorpus, awarding the custody of certain children to the relator, their mother, who had obtained a decree of divorce from their father in Illinois, where they both resided at the time of the institution of the suit. The trial in Illinois was had in the absence of defendant, and without allowing him to introduce any testimony in his behalf, or permitting his counsel to cross-examine the witnesses introduced by plaintiff, because, as claimed, he was in contempt of court for violating an order requiring him to pay alimony pendente lite, of which he had no notice by reason of his absence from the state. Testimony as to the relative position and ability of the parties to care for the children was considered in the lower court, and the custody awarded to the mother.Theo. Bacon

, for appellant.

John M. Davy, for respondent.

PER CURIAM.

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.

(All concur.)

1 See 40 Hun, 611.