From Casetext: Smarter Legal Research

Matter of Fitzsimmons v. Liuni

Appellate Division of the Supreme Court of New York, Third Department
Nov 21, 1966
26 A.D.2d 980 (N.Y. App. Div. 1966)

Opinion

November 21, 1966


Appeal from a judgment of the Family Court of Ulster County which sustained a writ of habeas corpus directed to respondents-appellants Liuni and awarded custody of Elizabeth St. John, an infant, to petitioner-respondent Commissioner of Public Welfare in a proceeding commenced in the Supreme Court, Ulster County, and by order of said court referred to said Family Court for hearing and determination. It is conceded that the Judge of the Family Court, by whom the proceeding was heard and determined, is a first cousin of the wife of the respondent Commissioner. Consequently, he was disqualified from acting, being "related by * * * affinity to [a] party to the controversy within the sixth degree", and the proceedings before him were and are void. (Judiciary Law, § 14; People ex rel. Union Bag Paper Corp. v. Gilbert, 143 Misc. 287, affd. 236 App. Div. 873.) The proceedings had in the Supreme Court prior to the reference were, of course, valid and under all the circumstances of this particular case, the matter should be remitted to that court. Consideration should there be given to the propriety of designating a guardian ad litem to represent the infant concerned and to the advisability of proceeding with the hearing and determination of the case in that court; but in each respect we prefer to leave the Special Term's discretion untrammeled. Judgment reversed, on the law, without costs, and thereupon vacated and set aside and proceeding remitted to the Supreme Court for further proceedings not inconsistent herewith. Stay continued. Order signed. Gibson, P.J., Herlihy, Reynolds, Staley, Jr., and Brink, JJ., concur.


Summaries of

Matter of Fitzsimmons v. Liuni

Appellate Division of the Supreme Court of New York, Third Department
Nov 21, 1966
26 A.D.2d 980 (N.Y. App. Div. 1966)
Case details for

Matter of Fitzsimmons v. Liuni

Case Details

Full title:In the Matter of JOSEPH FITZSIMMONS, as Commissioner of Public Welfare of…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Nov 21, 1966

Citations

26 A.D.2d 980 (N.Y. App. Div. 1966)

Citing Cases

People v. Reeves

An examination of the record reveals that Constable Ostrander and Investigator Carl Van Wagenen prepared the…