(182 N.Y.S.)

his answer was: "The insurance company took care of that." Thereupon the record shows the following:

"Defendant's Counsel: I object to that, if the court please. "Plaintiff's Counsel: He has answered the question.

"The Court: Never mind it.

"Plaintiff's Counsel: Did I ask anything improper?

"The Court: No; he asked him what he paid for repairs. "Defendant's Counsel: Exception."

It is to be noted that the objection taken was a general one, and incompetent to the question asked, which was a perfectly proper one in the circumstances detailed. The answer made thereto, however, was prejudicial to defendant, in that by indirection and suggestion the jury were given to understand that defendant was insured, and thereby indemnified in the action. Yet no motions were made for the withdrawal of a juror, for a mistrial, or to strike out the evidence, and for an instruction that the jury disregard it. In Simpson v. Foundation Co., 201 N. Y. 479, 490, 95 N. E. 10, 15 (Ann. Cas. 1912B, 321), the court said:

"Evidence that the defendant in an action for negligence was insured in a casualty company, or that the defense was conducted by an insurance company, is incompetent and so dangerous as to require a reversal, even when the court strikes it from the record and directs the jury to disregard it, unless it clearly appears that it could not have influenced the verdict."

While there was strong proof of plaintiff's contributory negligence, which would have justified a verdict for defendant, I cannot say that the result reached was not influenced by the knowledge that the defendant was insured as against liability, and in the interest of justice we conclude that the judgment should be reversed, and a new trial granted, with $30 costs to appellant to abide the event.

PEOPLE ex rel. LENTINO v. FESER et al.

(Supreme Court, Special Term, Bronx County. April 28, 1920.)

1. Adoption 12-Notice to nonconsenting parent necessary, though child abandoned.

An order of adoption without consent of the parent, generally necessary under Domestic Relations Law, § 111, but on the theory that the parent abandoned the child, being made without notice to the parent, is without jurisdiction and of no effect.

2. Habeas corpus 99 (7)-Paper signed by parent on misrepresentations, of no effect regarding right of custody of child.

A paper signed by a child's mother can have no effect as regards right between her and others to the child's custody; she having been induced to sign it by their misrepresentations as to its character and the purposes for which it was intended, and not knowing its contents.

3. Habeas corpus 99 (3)—Child's custody not awarded to stranger merely for betterment of child's welfare.

Custody of a child cannot be awarded by the state to another than an unoffending parent, able to maintain it, merely for betterment of child's welfare.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Habeas corpus by the State, on the relation of Elsa Lentino, against Charles G. Feser and another, for possession of a child. Writ sustained.

Leonard McGee, of New York City (John T. S. Wade, of New York City, of counsel), for relator.

Curtis, Robson & Collins, of New York City (David Robson, of New York City, of counsel), for respondents.

GIEGERICH, J. This habeas corpus proceeding is instituted by the relator, the mother of one Louise Phillips, otherwise known as Marie Feser, against the respondents, who are husband and wife, for the purpose of recovering the possession of the child. The child will be five years of age on July 1st next, and is the daughter of the relator by a former marriage and has been in the respondents' custody since on or about October 2, 1918. The petition, among other things, alleges that on January 18, 1913, the relator and Herbert A. Phillips were married, and that two children, to wit, Herbert C. Phillips, born December 3, 1913, and Elsa Louise Phillips, born July 1, 1915, thereinafter referred to as Louise Phillips, were the issue of that marriage; that the relator's husband died on August 3, 1915; that thereafter, and on or about February 27, 1918, the relator was united in marriage to Frank Lentino; that she and the said Frank Lentino are husband and wife, but are living separate and apart; that no decree of divorce or separation has been awarded to either of the parties; that the respondents have deprived the relator of the care and custody of the said child Louise Phillips and are asserting sole and exclusive control over such child under an order of adoption dated June 25, 1919, granted by the surrogate of Bronx county; that the relator first heard of the said adoption on September 23, 1919, after making application at the office of the Legal Aid Society for assistance in enabling her to recover possession of the child; that the relator is a fit and proper person to have the care and custody of the child and is able to properly care for and protect her and has never abandoned her; that the relator has at all the times mentioned in the petition resided within the borough of Brooklyn, city of New York; that she received no notice, actual or constructive, of the intention of the respondents to adopt the child; and that therefore the said adoption proceeding is a nullity as to the relator. The return to the writ, among other things, alleges that the relator had abandoned the child when it was brought to the respondents' house in Bronx county on or about October 2, 1918, since which time they have had the custody of the child; that thereafter and on or about November 26, 1918, the relator executed a paper writing of which the following is a copy, viz.:

"New York, November 26, 1918.

"I hereby consent to allow my daughter Louise, to live with, and be brought up by, Mr. and Mrs. Chas. G. Feser, 1326 Fulton Avenue, Bronx, N. Y., as I do not love or care for her. [Signed] Mrs. Elsa Lentino. Witness: Mrs. Charles G. Feser. Witness: Chas. G. Feser. Witness: Mrs. Emily De Rosa."

The return further alleges that on or about June 25, 1919, the surrogate of Bronx county granted an order of adoption of the said in

(182 N.Y.S.)

fant by the respondents; that the respondents attempted to give notice to the relator of their intention of adopting the child, but that they could not locate her. The order of adoption, among other things,

recites :

"That the mother of the said child has abandoned her and that the father of said child is dead, that said child has no guardian nor has she any property or income now or in expectancy, and that the moral and temporal interests of said child will be promoted by such contemplated adoption, for the reasons that said child has been abandoned by her mother, that she has no means of support, and that Charles Feser and his wife, Aida Feser, have no children of their own, and are persons of good moral character, fond of said child, and able and willing to provide for her support, maintenance, and education."

The return further alleges that the husband of the relator, Frank Lentino, was convicted of a felony in the Court of General Sessions of the Peace for the City and County of New York on August 12, 1919, and is now imprisoned in the state prison, at hard labor, for the term the minimum of which shall not be less than one year and six months and the maximum of which shall not be more than three years, which sentence was imposed by one of the judges of the said court. The return furthermore alleges that the relator has no visible means of income and no property of any kind, and has in her care and custody a son named Herbert, about seven years of age, and a child about one year of age; the latter being the issue of the relator's marriage with the said Frank Lentino.

The relator traversed the return of the respondents, and in her traverse she sets forth facts tending to show that the respondents could easily have reached her, had they sincerely been desirous of giving her notice of their intention to adopt the child. The traverse also denies that the child will become unhappy and discontented, and will not receive proper care, affection, or love from the relator. The traverse alleges that the relator's husband inherited from his father, Rosario Lentino, a sum of money which he stated to the relator amounted to about $30,000; that upon his release from prison in the month of July, 1920, he expects to come into possession thereof; and that the relator is well able to provide for her said daughter.

The traverse further alleges that, during the latter part of October, 1918, the respondent Aida Feser called upon the relator, accompanied by a girl, whose affidavit is annexed to the traverse; that the said respondent inquired of the relator whether or not she was willing to consent to the adoption by her of the said child; that the relator replied that she was unwilling to consent to said arrangement, and that she wanted her daughter back, whereupon the respondent Aida Feser stated that that was all right, she would keep Louise until the relator desired her; that a week after New Year's, 1919, the relator called. at the home of the respondents; that she was asked by the respondent Charles G. Feser whether or not she was willing to consent to his adopting the child; that the relator stated to him that she was not; that if he felt that way in regard to the matter she would immediately take the child home; that the said Charles G. Feser stated that he did not consider it quite right that he should keep the child, and that later on the relator would demand possession of her; that the relator stated

to him that the arrangement for keeping the child was that of his wife, and that at any time she was desirous of recovering custody of her she was to have her back; and that the said respondent then stated that it was no use making a fuss over the matter and that it was all right.

The traverse alleges furthermore that on or about April 7, 1919, the relator was confined; that she had neither the inclination nor strength to attempt to see the child, in the meantime feeling that she was perfectly safe with a person so well known to her; that shortly after the birth of the relator's baby, her husband, Frank Lentino, got into trouble; and that the relator was deeply concerned and busily engaged in doing what she could to help him. The traverse further alleges that the respondent Aida Feser is engaged in teaching toe dancing as a profession and that on several occasions, when the relator was at her house, she has seen her giving lessons to her pupils.

The traverse finally alleges that on or about November 26, 1918, she was asked by the respondent Aida Feser to sign a paper for the purpose of satisfying her husband that he was keeping the said child with the relator's consent; that the relator was very much under the influence of liquor, of which she had partaken with Aida Feser; that the relator does not know the nature of the paper she signed, and was in no condition to realize whether it was for or against her interest to do so; and that she accepted the assurance of the said Aida Feser that it was innocuous and for the purpose mentioned.

[1] Upon the trial of the issues so raised the parties offered evidence in support of their respective contentions. The first question to be determined is whether the order of adoption is a bar to this proceeding. The respondents contend that the adoption proceeding is valid because, as claimed, the relator abandoned the child and that that order constitutes a complete bar to the relator's right to its custody. The relator, on the other hand, maintains that she never abandoned the child and since no notice, actual or constructive, was given to her of such proceeding the order of adoption is a nullity. Section 111 of the Domestic Relations Law (Consol. Laws, c. 14), so far as applicable, provides as follows:

2. Of the foster

"Consent to adoption is necessary as follows: parent's husband or wife, unless lawfully separated, or unless they jointly adopt such minor. 3. Of the parents or surviving parent of a legitimate child, and of the mother of an illegitimate child; but the consent of a parent who has abandoned the child, or is deprived of civil rights, or divorced because of his or her adultery or cruelty, or adjudged to be insane, or to be an habitual drunkard, or judicially deprived of the custody of the child on account of cruelty or neglect, is unnecessary; excepting, however, that where such parents are divorced because of his or her adultery or cruelty, notice shall be given to both the parents personally or in such manner as may be directed by a judge of a court of competent jurisdiction.”

It will be seen from a reading of the foregoing that the consent of the parent of a legitimate child who has abandoned such child is not necessary to its adoption by the foster parent or parents. In the present case the relator did not consent to the adoption of the child, but the learned surrogate, by his adjudication that she had abandoned the child,

(182 N.Y.S.)

dispensed with the necessity of such consent. The learned surrogate was, upon the facts presented to him, amply warranted in so adjudicating. The evidence adduced upon the present proceeding, however, presents an entirely different situation. Although the evidence upon the question is conflicting, the relator has established to my satisfaction by a a fair preponderance of the evidence that she never abandoned the child, and that her whereabouts could easily have been ascertained, had the respondents made sincere efforts to do so when they applied for the order of adoption. Such order cannot, therefore, be sustained upon the theory that the relator had abandoned the child when it was granted, and it may safely be assumed that if the same facts shown upon the present proceeding had been presented to the learned surrogate he would not have granted such order of adoption.

It is not necessary for the purposes of this proceeding to consider whether or not the Surrogate's Court would, under these circumstances, have the power to revoke the order of adoption, because it clearly appears from the evidence, and without contradiction on the part of the respondents, that the relator was never served with notice, either actual or constructive, of the adoption proceeding had in that court, and such lack of service has been held to be fatal to the validity of such a proceeding. The precise question whether or not the court had jurisdiction to grant an order of adoption without such notice was presented in Matter of Livingston, 151 App. Div. 1, 135 N. Y. Supp. 328. In that case the mother of the child did not consent to the adoption, and there was an adjudication by the county judge that the mother had in fact abandoned the child. The petitioner sought a writ of habeas corpus to recover possession of her child, and the respondents filed a return claiming the custody of the child by virtue of an order of adoption. It appeared that the father of the child had. disappeared several years before. The petitioner traversed the return. by setting up that no notice, actual or constructive, had been given. to her of the adoption proceeding, and that therefore, as to her, the order of adoption was a nullity. The Special Term (74 Misc. 494, 134 N. Y. Supp. 148) held that the traverse did not raise a question of law affecting the validity of the order of adoption, and made an order dismissing the writ. On appeal by the petitioner from such order it was held by the Appellate Division that the traverse to the return that no notice, either actual or constructive, had been given to her of the adoption proceeding raised a question of law affecting the validity of the order of adoption, and that it was error for the Special Term to dismiss the writ, and the order of the Special Term was reversed and the matter was remitted to the Special Term for hearing and determination upon the questions raised by the traverse. Mr. Justice Carr, who wrote the prevailing opinion, in passing upon the question of notice to the petitioner of the adoption proceeding (151 App. Div. at page 3, 135 N. Y. Supp. 329), said:

"Our statute contains no express provision requiring the giving of notice to a non-consenting parent who is claimed to have abandoned the child. The question arises whether such adjudication was within the jurisdiction of the county judge without actual or constructive notice to the parent. This question is without reported precedent in this state."