Appeal from a judgment of the Supreme Court in favor of plaintiff entered May 23, 1961, in Cayuga County, upon a verdict rendered at a Trial Term. Appeal from an order of the Supreme Court at Special Term entered May 17, 1961, which denied a motion by defendant for an order dismissing the complaint and directing that judgment be entered in favor of defendant.
*693Memorandum by the Court. The trial court erroneously determined as a matter of law that plaintiff, who is the 15-year-old infant son of the defendant, was an emancipated child and as such could maintain this action for damages resulting from defendant’s negligence. “An unemancipated minor child has no right of action against his parent for non-willful injuries ”. (Badigian v. Badigian, 9 N Y 2d 472, 473.) Plaintiff was injured on August 21, 1958 when an automobile in which he was a passenger was so operated by defendant that it left the highway and collided with a utility pole. Some three years before the accident the Cayuga County Children’s Court ordered that plaintiff’s custody be removed from his parents and discharged to the Commissioner of Public Welfare of the City of Auburn. Thereafter he resided sometimes in the home of his parents and at other times in a foster home until June, 1958. It appears from the fact that the social worker permitted the child to return to his home on a trial basis at the specific request of the child that the Commissioner must have determined that home surroundings had substantially improved and put plaintiff back into the home on a trial basis. Plaintiff continued to reside there until the time of the accident. He was supported by defendant and was subject to her guidance, control and discipline. During the period that the child was returned to his home for purposes of reconstruction and re-establishment of the former relations, it cannot be said as a matter of law that the mother had no parental control over the child. At best, it seems that this presents a question of fact which should have been submitted to the jury. (Cannon v. Cannon, 287 N. Y. 425; Crosby v. Crosby, 230 App. Div. 651; Murphy v. Murphy, 206 Misc. 228.)