Marx v. Holloran , 236 A.D. 680 ( 1931 )

Motion for order of prohibition denied, without costs. (1) The court was not without jurisdiction of the habeas corpus proceeding. The custody of children, except when adjudged as an incident to an action for divorce or separation, is to be determined in a habeas corpus proceeding. (Dom. Rel. Law, § 70;^* Finlay v. Finlay, 240 N. Y. 429, 431; People ex rel. McCanliss v. McCanliss, 255 id. 456, 462.) (2) The existence of a court order temporarily passing upon the custody of children is not a bar to the right of a parent to a writ of habeas corpus to have that custody passed upon. (People ex rel. Riesner v. N. Y. N. & C. Hospital, 230 N. Y. 119.) The existence of an injunction order respecting the custody of the children made in an annulment action pending in another county and purporting to pass upon their temporary custody, whether that order was valid or invalid, presented no bar to a habeas corpus proceeding, so far as concerned the right of the court to entertain jurisdiction of such a proceeding, as such an order did not oust the Special Term of jurisdiction. (3) An order of prohibition is not favored by the courts; it may only be had in the exercise of discretion when no adequate remedy is available. Here a remedy by appeal is available if an improvident order be made. (People ex rel. Livingston v. Wyatt, 186 N. Y. 383, 393.) Present — Lazansky, P. J., Young, Carswell, Scudder and Tompkins, JJ.

* Amd. by Laws of 1923, chap. 235.'—■ [Rep.