Fitzsimmons v. Liuni

26 A.D.2d 980, 274 N.Y.S.2d 798, 1966 N.Y. App. Div. LEXIS 3073

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 21, 1966
• Status: Published

Opinion

Per Curiam.

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 ease 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.