Sandfort v. Sandfort

Shientag, J.

(concurring in result). I concur in the result here reached. I believe, however, that the time has come when this court should declare that it will no longer follow cases like People ex rel. MacAlpine v. MacAlpine (50 N. Y. S. 2d 232, affd. without opinion, 267 App. Div. 952); People ex rel Klee v. Klee (202 App. Div. 592), and Matter of Derer (262 App. Div. 969), but will hold that in an appropriate case the court on a writ of habeas corpus is empowered to make an original award for the support of children as an incident to custody and rights of visitation.

Where procedural rather than substantive rights are involved, we should not allow earlier rulings to stand in the way of affording prompt and effective relief for the benefit of an unsupported child. A Court of Chancery has broad equitable powers over minor children in the State (Finlay v. Finlay, 240 N. Y. 429; see, also, Domestic Relations Law, § 70). Those powers are not limited by the specific provisions of the Civil Practice Act dealing with custody and support of children nor should it matter whether the relief is sought by formal petition to the Chancery or by way of writ of habeas corpus.

Dobs, J. P., Cohn and Callahan, JJ., concur with Van Voobhis, J.; Shientag, J., concurs in result, in opinion.

Resettled order modified and, as so modified, unanimously affirmed, without costs and the appeals from the other orders dismissed. Settle order on notice. [See post, p. 913.]