This is an appeal from an order directing the appellant to produce in court at a time named (or in default thereof that a warrant issue for her commitment without further notice) Agnes G. Duryee, aged eleven years and four months, a daughter of the relator and the defendant.
From the return to the writ and the traverse thereto it appears that the parties were married in the State of New York and that there are three children of the marriage: Charles G., aged thirteen years and eleven months ; Mary G. A., aged twelve years and ten months, and Agnes G. of the age above stated; that the parties separated about seven years ago, the defendant taking the' three children and going to the State of Rhode Island, where, according to her contention, she obtained a residence for herself and them, and in June, 1900, an absolute divorce from the relator, the decree in that action awarding to her the custody and control of the children ; that thereafter for the purpose, among others, of' edueat*534ing the two daughters she took them to ¡Naples, Italy, where they ’have since remained and-whére they were in a convent at .the time this proceeding was instituted and'the return to the writ filed ; that since the separation took place she has supported all of said children and lias had the sole* care and custody of them.
The fact that the infant whose possession the relator .now seeks to obtain is" in: Italy was not disputed -by him, nor was the fact that since the separation above alluded to took place all of the children have been entirely supported ■ by the appellant and-that'she has, during that time, had their sole care and custody.
Upon the undisputed facts I &m of the opinion that the writ should have been dismissed. ■ It might well be doubted under, the decision in People - ex rel. Winston v. Winston (31 App. Div. 121) whether the court had any jurisditítion to adjudicate as to the custody of the child. -This decision, it is. claimed, has been overruled by People ex rel. Winston v. New York Asylum '(57 App. Div. 383) and People ex rel. Dunlap v. New York Asylum (58 id. 133). It is difficult to reconcile in some respects these decisions, blit the concltisioU at which I have arrived renders it unnecessary to determine whether or not the former is overruled by the two latter. Under the Domestic Delations Law (Laws of 1896., chap. 272) the rights of the husband and .wife to the. custody of their infant children vare equal. This fact, in at least a degree, the relator seems to have recognized, -because since the separation he admits he has 'in no wav contributed to the support of the daughter Agnes Gf., whose possession he now seeks to obtain. She Was then four years of age and since that time the appellant has had the sole care, custody aud maintenance of her. If the-daughter ■ could be intrusted when of such tender years and for such. :a .length of time to the care and custody of the mother, it would seem to follow ^-nothing appearing to indicate to the contrary — that she -could thereafter be intrusted to complete her education. Whether this be'so or not, I am of .the opinion,, upon the facts as now presented, that the relator is not entitled to the custody of the child and the appellant ought not to be required to produce her, for which reason the motion to dismiss the writ should have been granted
The order appealed from, therefore, must be reversed, and the *535motion to dismiss the writ granted, with fifty dollars costs and disbursements.
O’Brien, P. J., Ingraham, Laughlin and Houghton, JJ., concurred.
Order reversed and motion granted, with* fifty dollars costs and disbursements.