Ingraham, J. :
This action was brought by plaintiff to obtain a divorce from the defendant upon the ground of her adultery. Judgment was granted to the plaintiff dissolving the marriage and awarding the custody of the two infant children of the marriage to the defendant, and the plaintiff appeals from so much of the judgment as disposes of the custody of the children. It appears that the parties to this action were married in the year 1879, and they seemed to have lived together in this city or vicinity until about the year 1895. The plaintiff is employed and resides in the city of New York, and since the fall of 1885 the defendant appears to have resided principally in Utica, New York, although she spent a portion of the time in the city of New York, with her husband. In February, 1897, she left the plaintiff, and since that time has resided away from him at Utica and in Bethlehem, Pennsylvania. Efforts were made by the plaintiff’s brother to procure a reconciliation between the parties, which were unsuccessful, and in the latter part of the year 1897 the defendant went to the State of North Dakota, and on February 12, 1898, commenced an action in that State for a divorce from the plaintiff upon the ground that the plaintiff had failed to provide for her and her children the common necessities of life. Such proceedings were had that on June thirtieth judgment was entered in the District Court of Norton county, in the State of North Dakota, granting the defendant an absolute divorce from the plaintiff. Subsequently the defendant returned to the State of New York, and in October, 1898, at Jersey City, in the State of New Jersey, she married one James Wilson, and since that time has lived with him as his wife; and it was the defendant’s relation with Wilson upon which the plaintiff based the charge of adultery which resulted in the judgment of divorce granted in this action.
There are two children of this marriage, one, born on September [76]*763, 1881, who was seventeen years of age at the time of the trial, ándthe other, born in .1887, was eleven years of age at the time of the trial; both daughters have resided with their mother (the defendant) from their birth, and to the present time they have been under the constant care of their mother who has always acted toward them as a devoted mother, and to whom these daughters appear from the testi- , mony to be fondly attached. The defendant has superintended their education; has,.out of her private means, paid their school bills, and is continuing the education which she has thus supervised and controlled. Both daughters were examined on the trial and testified tc> their strong affection for their mother and their desire to continue to live with her. It further appears that the plaintiff has no home in Hew York, that he is living in a boarding house, has an income of $2,000 a year, which he has received several years, and there is no evidence that he has any expectation of receiving any greater income ; while the defendant has property of her own, has a comfortable home, and is able to amply provide for her daughters, giving them proper education and support, and giving to them the care and attention • which daughters require from a mother. There was no charge of any kind against the character of the defendant-except so far as she was guilty of adultery by reason of her marriage to Wilson after she 'obtained a decree of. divorce in the State of Horth Dakota; The plaintiff testified that he was served in the city of Hew York with the summons and complaint in the action in the State of Horth Dakota, but declined to appear in that action or take any part in the proceedings there under the advice of counsel ; that after the final separation in 1897, he made no effort in any way to protect or care for the children ; made no provision for their support, education or maintenance, although he knew that his wife had definitely separated herself from him and had commenced, an.' action to obtain a divorce from him; he refused to make any provision for them during this period, allowing the mother to provide for the children, support, educate and maintain them.
He expressly testified upon the trial that he had no reason for-thinking that the mother was not a proper custodian for the children beyond the fact that she had married the second time.' In the whole record, the only offense charged against the defendant, the only fact, from which any inference could be drawn that she was not in all [77]*77respects a good woman and the proper person to administer and care for the welfare of these two children, was that after she had obtained a divorce in the State of North Dakota, believing that divorce to have finally dissolved the relations between herself and the plaintiff, she contracted the second marriage. This second marriage was valid in New Jersey if the court in North Dakota had jurisdiction, and if valid there would have been valid here. (Moore v. Hegeman, 92 N. Y. 525.) Upon these facts the question as to what course would best preserve the future interest of these children was presented to the court below and the court had to determine in the exercise of its judicial discretion as to which of the parents the custody of the children should be awarded, considering their future welfare.. The rights of the parties to the action were subordinate to the welfare of the children. The misconduct of the defendant in contracting her second marriage depended entirely upon a legal question as to the jurisdiction of the court of the State of North Dakota to pronounce the decree of divorce. If that court had jurisdiction to grant that divorce no one would' say that the conduct of the defendant in contracting the second marriage was blameworthy, or would interfere in any way with her right to be awarded the custody of these children.
Does the fact that she had made a mistake as to the legal effect of this decree, or as to the jurisdiction of the court of North Dakota to grant a divorce which would be recognized in this State, so affect her character as to justify this court in reversing the action of the court below in awarding the custody of these children to her? The children are warmly attached to her. She.has devoted her life to their welfare, has provided for their support and' education, and it certainly would be a cruel act, unless the welfare of the children imperatively demanded it, to deprive them of the companionship of an affectionate and loving mother and assign them to the care of a father who has shown by his conduct that he had no very strong desire for their companionship, and'where there is no evidence to show that he is able to provide a proper home for them. These facts would seem to justify the conclusion of the court below that the happiness and welfare of these two daughters would be best protected and preserved by leaving them Avhere they both desire to be, with the person who, from their birth, has had the [78]*78charge of their maintenance, education and support, and who has faithfully and intelligently performed her duty toward them. 1 think it may be said that the time has passed when courts-of law are hound to recognize a right of property, in children as belonging to parents, or that the father has any inherent right superior to that of the mother to the custody of their children. In this State, by the Domestic Relations Law (Chap.
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Ingraham, J. :
This action was brought by plaintiff to obtain a divorce from the defendant upon the ground of her adultery. Judgment was granted to the plaintiff dissolving the marriage and awarding the custody of the two infant children of the marriage to the defendant, and the plaintiff appeals from so much of the judgment as disposes of the custody of the children. It appears that the parties to this action were married in the year 1879, and they seemed to have lived together in this city or vicinity until about the year 1895. The plaintiff is employed and resides in the city of New York, and since the fall of 1885 the defendant appears to have resided principally in Utica, New York, although she spent a portion of the time in the city of New York, with her husband. In February, 1897, she left the plaintiff, and since that time has resided away from him at Utica and in Bethlehem, Pennsylvania. Efforts were made by the plaintiff’s brother to procure a reconciliation between the parties, which were unsuccessful, and in the latter part of the year 1897 the defendant went to the State of North Dakota, and on February 12, 1898, commenced an action in that State for a divorce from the plaintiff upon the ground that the plaintiff had failed to provide for her and her children the common necessities of life. Such proceedings were had that on June thirtieth judgment was entered in the District Court of Norton county, in the State of North Dakota, granting the defendant an absolute divorce from the plaintiff. Subsequently the defendant returned to the State of New York, and in October, 1898, at Jersey City, in the State of New Jersey, she married one James Wilson, and since that time has lived with him as his wife; and it was the defendant’s relation with Wilson upon which the plaintiff based the charge of adultery which resulted in the judgment of divorce granted in this action.
There are two children of this marriage, one, born on September [76]*763, 1881, who was seventeen years of age at the time of the trial, ándthe other, born in .1887, was eleven years of age at the time of the trial; both daughters have resided with their mother (the defendant) from their birth, and to the present time they have been under the constant care of their mother who has always acted toward them as a devoted mother, and to whom these daughters appear from the testi- , mony to be fondly attached. The defendant has superintended their education; has,.out of her private means, paid their school bills, and is continuing the education which she has thus supervised and controlled. Both daughters were examined on the trial and testified tc> their strong affection for their mother and their desire to continue to live with her. It further appears that the plaintiff has no home in Hew York, that he is living in a boarding house, has an income of $2,000 a year, which he has received several years, and there is no evidence that he has any expectation of receiving any greater income ; while the defendant has property of her own, has a comfortable home, and is able to amply provide for her daughters, giving them proper education and support, and giving to them the care and attention • which daughters require from a mother. There was no charge of any kind against the character of the defendant-except so far as she was guilty of adultery by reason of her marriage to Wilson after she 'obtained a decree of. divorce in the State of Horth Dakota; The plaintiff testified that he was served in the city of Hew York with the summons and complaint in the action in the State of Horth Dakota, but declined to appear in that action or take any part in the proceedings there under the advice of counsel ; that after the final separation in 1897, he made no effort in any way to protect or care for the children ; made no provision for their support, education or maintenance, although he knew that his wife had definitely separated herself from him and had commenced, an.' action to obtain a divorce from him; he refused to make any provision for them during this period, allowing the mother to provide for the children, support, educate and maintain them.
He expressly testified upon the trial that he had no reason for-thinking that the mother was not a proper custodian for the children beyond the fact that she had married the second time.' In the whole record, the only offense charged against the defendant, the only fact, from which any inference could be drawn that she was not in all [77]*77respects a good woman and the proper person to administer and care for the welfare of these two children, was that after she had obtained a divorce in the State of North Dakota, believing that divorce to have finally dissolved the relations between herself and the plaintiff, she contracted the second marriage. This second marriage was valid in New Jersey if the court in North Dakota had jurisdiction, and if valid there would have been valid here. (Moore v. Hegeman, 92 N. Y. 525.) Upon these facts the question as to what course would best preserve the future interest of these children was presented to the court below and the court had to determine in the exercise of its judicial discretion as to which of the parents the custody of the children should be awarded, considering their future welfare.. The rights of the parties to the action were subordinate to the welfare of the children. The misconduct of the defendant in contracting her second marriage depended entirely upon a legal question as to the jurisdiction of the court of the State of North Dakota to pronounce the decree of divorce. If that court had jurisdiction to grant that divorce no one would' say that the conduct of the defendant in contracting the second marriage was blameworthy, or would interfere in any way with her right to be awarded the custody of these children.
Does the fact that she had made a mistake as to the legal effect of this decree, or as to the jurisdiction of the court of North Dakota to grant a divorce which would be recognized in this State, so affect her character as to justify this court in reversing the action of the court below in awarding the custody of these children to her? The children are warmly attached to her. She.has devoted her life to their welfare, has provided for their support and' education, and it certainly would be a cruel act, unless the welfare of the children imperatively demanded it, to deprive them of the companionship of an affectionate and loving mother and assign them to the care of a father who has shown by his conduct that he had no very strong desire for their companionship, and'where there is no evidence to show that he is able to provide a proper home for them. These facts would seem to justify the conclusion of the court below that the happiness and welfare of these two daughters would be best protected and preserved by leaving them Avhere they both desire to be, with the person who, from their birth, has had the [78]*78charge of their maintenance, education and support, and who has faithfully and intelligently performed her duty toward them. 1 think it may be said that the time has passed when courts-of law are hound to recognize a right of property, in children as belonging to parents, or that the father has any inherent right superior to that of the mother to the custody of their children. In this State, by the Domestic Relations Law (Chap. 272 of the Laws of 1896), the right of a mother to the guardianship, custody and control of the children is plainly recognized as being equal to that of the father; and while it is quite true that the willful desertion of her husband by a married woman, without just cause, may, of itself, be sufficient to show that her character is such that it would not be safe to intrust to her the education and care of her children, the facts of this case would not justify such a finding.
It is apparent from the testimonythatforcewould.be required to compel these children to leave their mother and reside with the father:; and" I do not think that the court would be justified, under the circumstances, in making and enforcing such a judgment and" in compelling these children- to live with the father when it would seem to be for their interest that the mother should continue to supply them with a mother’s care, and where the father has shown ■ no ability to properly provide them with a home and make provision for their material interests, or to supply them with the care which all young girls require. .
We have, to determine this question upon the record which was before the.court below and is now before us, and it. does not appear that the defendant continued in her relation with Wilson after it was adjudged that such relation was unlawful.
I do not-think, therefore, that we should he justified in overruling the discretion of the judge who tried the case and had the parties before him. The judgment appealed from should be affirmed with costs.
Rumsey and O’Brien, JJ., concurred; "Van Brunt, P. J., and Barrett, J., dissented.