Opinion
December 6, 1927.
Gilbert A. Nusbaum, for the relator.
William F. Love, District Attorney, for the respondent.
The relator was arrested under a warrant issued by the judge of the Children's Court of Steuben county charging him with being a disorderly person in violation of section 899 of the Code of Criminal Procedure, in that he had abandoned an infant son, leaving him without adequate means of support.
The relator's wife obtained a decree of divorce from relator in which the custody of the infant son was awarded to the mother and the relator was required to pay the sum of eight dollars per week for the support of the mother and infant son. Notwithstanding the decree of divorce the relator may be convicted of being a disorderly person if he fail to support the infant son. ( Matter of Soriano, 216 N.Y. 720.)
The record on appeal in that case discloses that the facts are quite similar to the one at bar. Although the order dismissing the writ was affirmed by the Appellate Division and by the Court of Appeals without opinions, quite lengthy opinions were written in the matter by the magistrate and by the county judge of Kings county.
It appeared that a final judgment had been entered granting a separation to Mrs. Soriano and awarding to her the custody of an infant daughter and directing Soriano to pay seven dollars a week for the support of Mrs. Soriano and the child. It was shown that Soriano had failed to pay for the support of his daughter. It was held that, notwithstanding the judgment of separation, Soriano might be arrested and convicted as a disorderly person.
The question raised in this case must be deemed to be settled by the decision in the Soriano matter.
The writ of habeas corpus is dismissed and the relator remanded to the custody of the chief of police of the city of Rochester, N.Y.