Opinion
July 7, 1966
In a habeas corpus proceeding instituted by a divorced husband to compel his former wife to return their infant son and daughter to this State and to award custody of said children to him, the wife appeals (1) from an order of the Supreme Court, Queens County, entered December 21, 1965, which denied her motion to quash and vacate the writ of habeas corpus issued to the husband on September 28, 1965 and ordered a hearing on said writ; and (2) from so much of an order of said court, entered March 7, 1966, as directed her to return the children to this State on or before July 1, 1966 (upon condition that the husband pay airplane costs for the wife and the children), and awarded custody of the children to the husband, with certain visitation rights to the wife, should she fail to return the children as directed. Appeal from order entered December 21, 1965, dismissed without costs, as untimely (CPLR 5513, subd. [a]). Despite its untimeliness, however, we have examined the merits of said appeal and were it properly before us, we would affirm ( Matter of Kades, 23 Misc.2d 222, affd. 10 A.D.2d 919). Order entered March 7, 1966, modified by striking out the phrase "on or before July 1st, 1966" wherever it appears and by inserting instead "on or before August 1, 1966." As so modified, order affirmed, without costs. Our modification of the order is designed only to extend the time for return of the children in light of the time consumed by the appeal. Christ, Acting P.J., Brennan, Hill, Hopkins and Benjamin, JJ., concur.