(concurring in result). Only in the most unusual circumstances will a mother be denied custody of her own child. Under the emotional and other stress at the time the mother did sign the document referred to, but this record establishes, in my opinion, that she has had a sincere change of heart and realizes the serious error she has made and is trying to correct it. There is nothing in the record to show abandonment or that the mother is unfit to have custody of her own child.
The Supreme Court has already taken jurisdiction in this habeas corpus proceeding, which should bar the Surrogate’s Court from entertaining an adoption proceeding until a final order is made herein.
It is true the record is inadequate with regard to the surroundings and living conditions of the parties and the circumstances under which the so-called adoption was arranged by the lawyer and the doctor. Hence I concur in reversal and remitting the proceeding to Special Term to ascertain all the facts including the fitness of the parties and their respective surroundings, keeping ever in mind the mother’s predominant natural and legal right to the care and custody of her own child unless she is clearly shown to be unfit.
Peck, P. J., Cohn and Callahan, JJ., concur with Van Voobhis, J.; Dobe, J., concurs in result in opinion.
Order, so far as appealed from, unanimously reversed and the proceeding remitted to the Special Term for a new trial in accordance with the opinion of Van Voobhis, J. Settle order on notice.