The child having been placed in the hands uf the asylum for a limited period of time, it must be assumed to have its legal custody and control; besides, the evidence upon which the order directing the production of the child was based tended to establish than the authorities of the defendant still exercised control over the person of the child and could obey the writ. In this respect the case differs from that of People ex rel. Billotti, v. New York Juvenile Asylum (57 App. Div. 383), for therein it appeared that not only were the children without the jurisdiction of the State, but that the persons having their custody refused to deliver them up, and for that reason it was concluded that the asylum authorities could not obey the writ. In disposing of the question in that case it was said that if it: appeared that the party may have the control of the person, ór is able to obey the command of the court to produce it, the writ ought te issue; that the writ ought not to be vacated until the authorities for an answer thereto show that they are unable to produce the children. It is not a question as to what final disposition the court will make of the child, or whether it will direct it to be delivered to the custody of the relator. The question is, whether the court ought to compel the authorities of the defendant to produce the child in court for the purpose of determining to whom it will award its custody. Presumptively the mother is entitled thereto; and this is .sufficient to require the defendant to produce the child or show that it has not the physical ability so to do. Such latter fact does not yet appear. ,1 think the order appealed from should be affirmed.
O’Brien, J., concurred.
Order reversed and case sent back to the Special Term for another hearing.