Opinion
November 4, 1957
In a habeas corpus proceeding to obtain the custody and control of two infant children of the parties, the appeal is (1) from an order dated November 1, 1955, dismissing the writ without prejudice to any other proceeding appellant may wish to institute, and (2) from so much or an order dated September 1, 1955 as granted respondent a counsel fee. Order dated November 1, 1955 reversed, without costs, a new hearing granted, and respondent directed to make return to the writ upon five days' notice. Order dated September 1, 1955, insofar as appealed from, reversed, without costs, and motion denied. No sufficient ground is shown for the dismissal of the writ without a hearing on the merits. The learned Justice at Special Term, recognizing that there is no authority to award counsel fees in a habeas corpus proceeding, treated the motion as having been made to modify a judgment entered in 1946 separating respondent from appellant. However, respondent had obtained a judgment of divorce in Arkansas in 1949 and, consequently, counsel fees could not be awarded in the separation action. ( Marshall v. Marshall, 280 App. Div. 814, affd. 304 N.Y. 956; Marshall v. Marshall, 281 App. Div. 976.) Nolan, P.J., Beldock, Ughetta and Kleinfeld, JJ, concur; Hallinan, J., not voting.