The defendant was indicted charged with the crime of abandoning his seven months’old child, and upon the trial-was convicted, *944and from the judgment of conviction has appealed to this court. The indictment was found under section 480 of the Penal Law, which provided as follows: “ A parent or other person charged with the care or custody for nature or education of a child under the age of sixteen years, who abandons the child in destitute circumstances, and wilfully omits to furnish necessary and proper food, clothing or shelter for such child, is guilty of felony." From the testimony it appears that the child, which was illegitimate, was born in June, 1911, and that the child’s mother and the defendant were married the following December, but have never lived together, and that on the day of the marriage the defendant promised to give the mother, with whom the child has always lived, three dollars per week for its support, but that he has given the mother nothing whatever. This promise to pay did not make the defendant liable for the care or custody of the child, and as there was no proof that he was the father of the child, the judgment of conviction must be reversed and a new trial had. Betts, J., concurred; Houghton, J., concurred in memorandum; Smith, P. J., and Kellogg, J., voted for affirmance.