Opinion
September 5, 1929.
Appeal from the City Magistrates' Court, Borough of Queens, City of New York.
Robert Price Bell, for the appellant.
Arthur J. Hilly, for the respondent.
The appellant was adjudged guilty of being a disorderly person, in that he neglected to provide for the support of his minor child according to his means. (Inferior Criminal Courts Act, Laws of 1910, chap. 659, art. 5, § 74, as amd. by Laws of 1919, chap. 339.)
Owing to a decree of divorce, the father and mother of said child are no longer husband and wife. The child in question was born after the decree of divorce was entered and no provision was made therein for its custody. It has been since its birth and now is in the custody of the mother. The appellant admits that he is the father of said child, but claims that he was and is ready and willing to support said child and give it a better home than it now has, and that he should not be required by law to do that which he has at all times been ready and willing to do.
We hold, however, that in the absence of any evidence that the mother is not a proper person to have the custody of said child, she is primarily its legal custodian and the appellant having admitted that he is the father it follows that he is bound to support said child according to his means. We do not think the amount named in the order is excessive. Judgment affirmed.
All concur; present, FETHERSTON, MURPHY and HERBERT, JJ.