Eugene L. Klee, a boy nine years old, was brought before the Special Term by his father upon a writ of habeas corpus issued on application of the mother under the provisions of section 70 of the Domestic Relations Law. After a hearing before the court the custody of the child was awarded to the mother, with the direction that the father pay to the mother for the support, maintenance and education of the child the sum of ten dollars each week while in the custody of the mother.
The father raises no question about the custody of the child, but contends'that the court was without authority to require him to pay for such support, maintenance and education, and appeals from the part of the order making such directions.
The evidence, if any, taken before the court is not returned, but according to the recital in the order the court inquired into the facts and examined the parties as to their respective contentions, from which it appears that since March, 1921, the father and mother, who are husband and wife, have been living in a state of separation; *596that on or about August 27, 1921, they agreed to articles of separation awarding the custody of the child to the mother, the father agreeing to pay sixty dollars a month to the mother for the support of the child while the child was in her custody. The child was placed in school and thereafter taken therefrom by the father, upon a promise to return the child within a week, but he failed to keep his promise and kept the child away from the mother. He admitted before the Special Term that he was living in open adultery with a woman not his wife, and that he had the child with him.
It further appeared that the mother had a suitable place and environment to bring up the child, and that ten dollars a week is a sufficient sum for that purpose, and the father expressed a willingness to furnish such support. Thereupon the Special Term awarded the custody of the child to the mother, with a direction that the father pay such sum weekly to the mother for such support, maintenance and education, as before stated.
Section 70 of the Domestic Relations Law reads as follows:
“ Habeas corpus for child detained by parent. A husband or wife, being an inhabitant of this State, living in a state of separation, without being divorced, who has a minor child, may apply to the Supreme Court for a writ of habeas corpus to have such minor child brought before such court; and on the return thereof, the court, on due consideration, may award the charge and custody of such child to either parent for such time, under such regulations and restrictions, and with such provisions and directions, as the case may require, and may at any time thereafter vacate or modify such order.”
I am of opinion that this section is broad enough to authorize the direction requiring the father to support the child. No authoritative decision has been called to our attention, nor have I been able to find any, which passes upon this precise question, but I think that the provisions of the statute which authorize the court to award the custody of a child to either parent “ under such regulations and restrictions, and with such provisions and directions, as the case may require,” authorizes the court to provide for the support of a child whose custody is thus disposed of.
The order should be affirmed, with ten dollars costs.
Order so far as appealed from reversed, without costs.