In the dispatch of the mass of business at Special Term the learned justice must have misapprehended his prior order, both in its terms and in its legal effect. It had denied the father’s right by a dismissal of his writ, with costs. But it did not fix the status of the infant and determine that his present and future custody should remain in the hands of Emma Kenyon Lee. (People ex rel. Keator v. Moss, 6 App. Div. 414, 418.) The learned justice ruled as matter of law that the general guardianship. regularly conferred upon Mr. Lyon would not entitle him to his ward’s custody without application to modify the "justice’s prior order. Such order dismissing the father’s writ could not deprive the surrogate, upon proper application and upon due notice under the Code, of a statutory power to appoint a general guardian with which Surrogates’ Courts have been vested in this State since 1802. (See Laws of 1802, chap. 110; R. L. of 1813, chap. 79 [1 R. L. 454], § 30; 2 R. S. 151, § 6, as amd. by Laws of 1870, chap. 341, and Laws of 1871, chap. 708; Code Civ. Proc. § 2821 et seq.; now Code Civ. Proc. § 2643 et seq., as amd. by Laws of 1914, chap. 443; Gen. Rules Pr., rules 52-54; Matter of Wagner, 75 Misc. Rep. 419, 425 et seq.)
.No appeal was taken from the surrogate’s action in appointing Mr. Lyon as general guardian. Being made after hearing all parties, it especially bound these relators, who had themselves invoked this jurisdiction. If it be said that the general guardian should not have forcibly taken the child, when he had been returned within the State after his removal to Connecticut,., then; as that forcible taking was denied, that issue should not be determined- against the guardian without hearing testimony. . The general guardian, as to his, ward’s person, stands *145in loco parentis (12 E. O. L. 1120.) He has the right of custody by virtue of his appointment and official status. This essential right of such a general guardian could not properly be ignored, on return to this writ.
Upon the ground of error as to the scope and effect of the former order of September 15, 1915, and in overruling the objection raised on this return, that the general guardian appointed June 20, 1916, was entitled to his ward’s legal custody, the order appealed from should be reversed, with ten dollars costs and disbursements, and the writ dismissed, with costs.
Jerks, P. J., and Carr, J., concurred; Mills, J., voted to affirm on the ground that the equities are strongly with the respondent, Mrs. Lee, and that the attempt to take the boy away from her, practically by force, was reprehensible and unwarranted, and of itself justified the order appealed from here; Rich, J., dissented.
Order reversed, with ten dollars costs and disbursements, and writ of habeas corpus dismissed, with costs.