People v. Rubens

92 N.Y.S. 121

• Court: New York County Courts
• Decided: July 19, 1904
• Status: Published

Opinion

CRANE, J.

I.can find no evidence in the case sufficient to convict the defendant of being a disorderly person, in having abandoned his children. The husband and wife entered into a separation agreement under which they apparently have been living apart ever since. By this she was given the custody of the boy, but nothing definite was fixed for his support. The circumstances under which the wife subsequently obtained possession of the girl-are disputed. She testifies the child was given to her by thp husband, while he claims that it was kidnapped by the, wife. As to-the custody of the children, the separation agreement is very unsatisfactory and uncertain. No provision is made for the father to see the boy. The' father, according to the general rule, is chargeable with the care and maintenance of his children; but he is also-entitled to their custody, their society, and their services- I do not find anything in the evidence in the case to show that the defendant has renounced all these, even if he could legally do so by agreement; nor is there any reason given why the defendant cannot see his children, or take them to his home. His wife refuses to-permit him to see the children, and yet insists that he shall support them. He has means sufficient to support his children, is ready and willing to support them, and has demanded their return to him for this purpose. Accordingly the children need not become a charge upon the county, as the father stands ready to furnish a better living for them, indeed, than the county authorities could enforce. Because a man refuses to support his children, whom the wife unlawfully keeps away from him or prevents his seeing, constitutes no abandonment, especially when it does not appear but that he is in every way a worthy father. See Duryea v. Bliven, 122 N. Y. 567, 25 N. E. 908; Allen v. Affleck, 10 Daly, 509.

Judgment of conviction reversed.