In re Maloney ( 1888 )

Barrett, J.

The fact that the child had a guardian could readily have been ascertained by a proper investigation, probably by interrogating the child himself. At all events, there was such a guardian, and the question is whether notice of some kind should not have been given. The spirit of all the acts and decisions upon this subject favors the conclusion that such notice should have been given. I find provision for it in section 291 of the Penal Code, as amended in 1886 and 1888, and in the consolidation act of 1882, §§ 1594-1632. The cases, too, seem to recognize the necessity for such notice. Van Heck v. Protectory, 101 N. Y. 195, 4 N. E. Rep. 177; Van Riper v. Protectory, 106 N. Y. 604, 13 N. E. Rep. 435; 19 Abb. N. C. 142. It is true that the notice referred to in section 291 of the Penal Code is special; that is, a notice which, if given, shall render some other or different notice under local or special statutes unnecessary. Still, I think that the notice thus contemplated was intended to be a general requirement. It would be strange, indeed, and exceedingly harsh, if an adjudication should be permitted entirely ex parte that a child was without proper guardianship. Such an adjudication runs practically against the guardian as well as against the child, and yet such guardian is stigmatized as “improper” without the opportunity of defending himself or herself or the child. Upon the whole, I think that the demurrer should be overruled, and the child discharged.