Callanan Road Improvement Co. v. Town of Newburgh , 5 A.D.2d 1003 ( 1958 )

Appeal (1) from so much of an order as sustains a writ of habeas corpus and awards the custody of an infant to her mother, the respondent on this appeal, and (2) from findings that respondent did not abandon the infant and that she is in all respects a fit and proper person to have custody. Order insofar as appealed from unanimously affirmed, without costs. The infant was surrendered to appellants for adoption immediately after its birth. Almost at once, respondent experienced a change of mind, consulted an attorney with regard to regaining custody, and instituted the instant proceeding within six months of the surrender of the child to appellants. At the hearing, no issue was raised as to respondent’s fitness, nor was there any proof or claim that respondent- was actuated by an improper motive in seeking to regain custody. On the record presented, the learned Special Term was entirely justified in finding that respondent had not abandoned the infant, and in awarding custody to her. (Cf. People ex rel. Kropp v. Shepsky, 305 N. Y. 465; Matter of Giliberto [Diangson] 4 A D 2d 692, affd. 3 N Y 2d 915.) Appeal from findings dismissed, without costs. No separate appeal lies from findings.

Present — Nolan, P. J., Beldock, Murphy, Ughetta and Hal-linan, JJ.