Duryee v. Duryee

• Decision Date: 21 May 1907
• Citation: 188 N.Y. 440,81 N.E. 313
• Parties: PEOPLE ex rel. DURYEE v. DURYEE.
• Court: New York Court of Appeals Court of Appeals

188 N.Y. 440

81 N.E. 313

PEOPLE ex rel. DURYEE

v.DURYEE.

Court of Appeals of New York.

May 21, 1907.

Appeal from Supreme Court, Appellate Division, First Department.

Habeas corpus by the people on the relation of Gustavus Abeel Duryee against Emma G. Duryee. From an order of the Appellate Division of the Supreme Court (96 N. Y. Supp. 371,109 App. Div. 533) reversing an order made at special term refusing to dismiss the writ, relator appeals. Reversed.

Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department reversing an order made at Special Term.

This proceeding is a controversy between husband and wife, living in a state of separation, involving the custody of their infant daughter. It was commenced by the husband, a resident of this state, upon whose petition a writ of habeas corpus was issued against the wife. Neither the petition nor the writ is set forth in the record and the first information furnished by the parties is an order made at Special Term on the 25th of May, 1905, of which the following is a copy: ‘A writ of habeas corpus directed to the above-named defendant, having been duly granted herein, requiring her to have the body of Agnes G. Duryee before this court on the 1st day of May, 1905, and said defendant having appeared on that day by Robertson Honey, Esq., her attorney, and having then filed a return to said writ under her oath, together with said writ, and this proceeding having thereupon been duly adjourned to the 2d day of May, 1905, for the purpose of allowing said relator to prepare a traverse to said return, and a traverse under oath of said relator having been duly filed by him on said 2d day of May, 1905, and said defendant having failed to produce said Agnes G. Duryee in court, as directed in said writ, and having moved upon said return and said traverse to dismiss the writ, on the ground that said Agnes G. Duryee was without the state of New York at the time the said writ was served on said defendant and thereafter, and the court having heard Robertson Honey, Esq., of counsel for said defendant, in support of said motion, and Walter I. McCoy, Esq., of counsel for said relator, in opposition thereto, and due deliberation being had-it is hereby ordered that said motion to dismiss said writ be and the same is hereby denied; and it is hereby further ordered that said defendant Emma G. Duryee have the body of said Agnes G. Duryee before the Supreme Court of the state of New York, at a Special Term, Part II thereof, to be held at the county courthouse, county of New York, on the 25th day of September, 1905, at 10:30 o'clock in the forenoon of that day; and it is hereby further ordered that if said Emma G. Duryee shall fail to have the body of said Agnes G. Duryee in court, as above directed, a warrant may issue for the commitment of said Emma G. Duryee without further notice, on proof by affidavit of such disobedience.’

The respondent alleged in her return that, when the writ was served, Agnes, the infant whose custody is in question, ‘was and still is in the convent of the Sacred Heart, at Naples, Italy.’ She further alleged that three children were born of her marriage to the relator, Charles, aged 13, Marie, aged 12, and Agnes, aged 11; that about seven years ago she was driven from the house of the relator by his cruelty and by his failure to contribute to the support of herself or the children; that thereupon she removed with them to the state of Rhode Island, where they all now reside; that on the 4th of June, 1900, she procured an interlocutory decree of divorce from the defendant in the Supreme Court of that state, and that such decree became final on the 4th of December, 1900; that soon after the date last named she and her children removed to Naples, where the two daughters now are; that in February, 1905, her mother died within the state of New York, and it became necessary for her to come here to settle up the estate, and when she came she brought her son Charles with her, intending to return to her temporary home in Naples as soon as possible; that owing to the tender years of her daughters she removed them from her temporary home and placed them in said convent for better care and protection during her absence; that at no time during the past seven years has the relator contributed toward the support of herself and children, and she selected Naples as her temporary home because many of her friends were living there, her income had more purchasing power there, and she could educate her children there in the French and Italian languages; that when the writ was served on her in April, 1905, it was physically impossible for her to go back for agnes and she was unwilling to intrust her to the care of any other person to make the long journey; that it was also legally impossible for her, because on the 17th of April, 1905, she was ordered by the Supreme Court not to leave the state of New York, and that the only restraint or custody exercised by her over the said infant is such as is usually exercised by a mother over her young child.

The relator in traversing the return alleged that the respondent is a resident of the state of New York, that she separated from him without just cause, and that the decree of divorce obtained in the state of Rhode Island is not binding upon him, because he did not appear in the action and no process was served upon him within the jurisdiction of the court which made the purported judgment. He further alleged that the respondent went to Rhode Island in bad faith, in order to avoid the service of process upon her in this state; that she did not intend to acquire, and did not in fact acquire, an actual ‘residence or domicile there’; that she has never resided there since she procured the alleged divorce; that in taking the children out of this state she violated her written agreement with the relator to allow him to see his children at certain times and on certain conditions; that he requested her in writing to be permitted to see his children in Naples, but that she made no...