Appeal from Special Term, Erie County.

Action by the Buffalo Clean Street Company against the city of Buffalo. From a judgment dismissing the complaint, plaintiff appeals. Affirmed.

The following is the opinion of Kruse, J., at Special Term:

The plaintiff seeks to reform a contract made with the commissioner of public works of the city of Buffalo, which provided for placing at street corners in the city, by the plaintiff's assignors, of receptacles for receiving waste paper and the like material for the use of the city, with permission to the owners of the receptacles to place thereon advertising matter. The reformation desired does not seem to be seriously resisted by the city if the contract is binding upon it. It is, however, attacked by the city upon the ground of its invalidity, it being contended that inasmuch as one contract had been made by the city for the same purpose, covering a period of 10 years, although it was terminated by the city before the expiration of that period, the commissioner of public works was without authority to make this contract in question, for the reason that the resolution or ordinance authorizing the making of such a contract provided only for a single contract, covering a period of 10 years, beginning with the date of the contract, and that, one contract having been so made, although remaining in force for only 2 years, the power so granted by the common council was exhausted, and that the attempt to make a second contract was unauthorized, and not binding upon the city. I am inclined to the view contended for on behalf of the city. I think it quite plain that this method of furnishing means for receiving and storing this waste material, and thus serving to keep the streets clean, was experimental only, and that at the end of the contract term further action would have been required on the part of the legislative branch of the city government to continue this system; and so, where the original contract was terminated by the city before the expiration of the 10-year period, under the right reserved by the city in the resolution or ordinance, such further action was likewise necessary to authorize the making of a new contract, to supplement the original contract for the unexpired term thereof. Taking the view, however, that this resolution or ordinance contemplated that this system should continue for the maximum contract term of 10 years, and that the commissioner of public works was authorized to use this system for that entire period, and to that end make contracts for different sections of the city, or to supplement by further contracts such as might be terminated before the contract period had expired, under the right reserved to the city, yet it will be seen that this contract is for the period of 10 years from its date, and thus extends beyond the original maximum contract period, so that even in this view the contract was unauthorized. I think this contract is not binding upon the city, and that the plaintiff is not entitled to maintain this action.

Judgment may therefore be entered declaring it void, and dismissing the complaint.

Argued before MCLENNAN, P. J., and SPRING, WILLIAMS, HISCOCK, and NASH, JJ.

Simon Fleischmann, for plaintiff.

Charles L. Feldman and Edward L. Jung, for defendant.

PER CURIAM. Judgment affirmed, with costs, on opinion of Kruse, J., delivered at Special Term.

SPRING, J. (dissenting). By the ordinances passed on the 25th of July, 1900, and which comprise Exhibit A of the record, an entire new scheme was blocked out to collect and dispose of the waste paper and other litter which collected upon the streets. In the first para

98 N.Y.S.-50

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graph or subdivision the duty was imposed upon the board of public works to take charge of this business. In order to carry out the scheme, that department was authorized to enter into a contract with a respectable person or firm for the erection and maintenance of 300 of the boxes or receptacles designed for the deposit of this litter. By this contract the person or firm was to have "the exclusive right and privilege for a period of ten years to erect and maintain

said boxes."

In the first place, I do not think the project was intended to be experimental, unless it can be said that because a new method or plan was intended to be adopted pursuant to the ordinances an experiment was involved. The scheme was designed to continue for at least 10 years, for the first contract to be entered into was to extend over that period. A contract of that length, covering the entire city, is too extensive to denominate it a mere experiment.

In the second place, it seems to me to narrow the scope of the contract to limit the authority to the original agreement which the board of public works was to enter into. We must keep in mind that this whole business was committed to the board of public works, and the making of the contract was simply the mode of executing it. It would be rare that the one contract would continue for a period of 10 years, and the board of public works, in order to make effectual the new plan adopted, must possess the power to make new agreements as occasion should arise. The ordinances themselves, it seems to me, inherently indicate this purpose. By subdivision 4, the department of public works is directed, "as frequently as shall be necessary," to provide for the taking care of the waste paper and litter. Again, in subdivision 5, the expression "in any contract" is used, and in the succeeding subdivision, in referring to the license or privilege, we find the following language, "with whom such contract or contracts shall be made.” The city is fully protected. In the first place, by subdivision 6, the right is given to terminate the contract upon 60 days' notice; in the second place, if it desired to abandon the business, it could do so by repealing the ordinances. Pursuant to the authority given it, the department of public works, now a commissioner, entered into an agreement which continued along until 1902, when he terminated it under the 60-day clause. He immediately entered into another agreement with the plaintiff, which the common council disapproved, but did not repeal the ordinances. It is not necessary here to discuss the right of the common council to interfere with the commissioner of public works to the extent of annulling the agreement which he has made. The point is, it seems to me, that the agreement was valid when executed, and, whatever expenses have been incurred (and it seems some were incurred), or whatever rights accrued to the plaintiff by virtue of the agreement, they may be entitled to; that is, it was a valid agreement at its inception, because the board of public works was authorized to make it.

The only question, therefore, to consider is what the ordinances meant, and it does not seem to me, in view of the scope of the business, of the power committed to the board of public works, the phrase

ology of the ordinances, and the extent of the plan designed, that we can say they should be limited to the first contract made by the board. I think the judgment should be reversed.

PEOPLE ex rel. LA FORTE v. RUBIN.

(Supreme Court, Special Term, Onondaga County. December 8, 1905.) 1. INDIANS-CUSTODY OF CHILD-HABEAS CORPUS-JURISDICTION.

Under Domestic Relations Law, Laws 1896, p. 222, c. 272, § 40, providing that the husband or wife, being an inhabitant of this state, living in a state of separation without being divorced, who has a minor child, may apply to the Supreme Court for a writ of habeas corpus, and have the child brought before the court, and on the return the court may award the custody of the child to either parent, under such regulations as the case may require, habeas corpus proceedings may be maintained by an Indian woman, a ward of the United States government living on an Indian reservation, where she is living in separation from her husband without being divorced.

2. MARRIAGE-ESSENTIALS-INDIAN CUSTOM.

Under Laws 1892, p. 1574, c. 679, § 3, providing that Indians who contract marriage according to the Indian custom and cohabit as husband and wife shall be deemed lawfully married, members of the Onondaga Nation, who were married according to custom of that nation, consisting simply in an agreement to live together as man and wife, and in following out that agreement till by mutual consent or otherwise a separation occurs, were lawfully married.

[Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Marriage, § 6.] 3. PARENT AND CHILD-RIGHT TO CUSTODY OF CHILD.

Where, on separation of a husband and wife without procuring a divorce, the husband forcibly took their child and placed it with its grandmother, with whom it lived till her death, when it remained with an aunt, the mother of the child, leaving aside the question of its welfare, is entitled to its custody as against the aunt.

[Ed. Note.-For cases in point, see vol. 37, Cent. Dig. Parent and Child, § 13.]

4. SAME-FOrfeiture of RIGHT.

A mother who for eight years never made any claim to the custody of her child, who resided during that time with its grandmother and aunt, forfeited her legal right to its custody.

[Ed. Note. For cases in point, see vol. 37, Cent. Dig. Parent and Child, §§ 23, 24.]

5. SAME-WELFARE OF CHILD EVIDENCE.

In habeas corpus proceedings by a mother for the custody of her child. evidence held to show that the welfare of the child will be best promoted by leaving it in the custody of the respondent, an aunt of the child.

Habeas corpus proceedings by the people, on the relation of Leah La Forte, against Sarah Rubin for the custody of Kimball Thomas. Writ dismissed.

The following is the report of the referee:

To the Hon. Maurice L. Wright, Justice of the Supreme Court: Pursuant to an order made by you in the above-entitled matter, and dated October 20, 1905, whereby I was directed to take the evidence in said matter and report the same to you, with my opinion thereon, I herewith respectfully report that I have taken said evidence, and herewith submit the same, my opinion in the matter, preceded by a statement of the facts, being as follows: The relator

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herein, Leah La Forte, an Indian, on the 11th day of October, 1905, petitioned your honor for a writ of habeas corpus directing one Sarah Rubin to produce before you on a certain day the body of one Kimball Thomas, alleged to be illegally imprisoned and restrained by her at her home on the Onondaga Indian reservation. Return to the writ was duly made, and said Kimball Thomas produced. It appears from the evidence taken on the hearings before me that both the relator and the respondent are Indians, residing at the Onondaga Reservation, and that relator is the mother of said Kimball Thomas, who is a boy about 11 years of age. It further appears that respondent is the aunt of the boy, being a sister of the boy's father. It is undisputed that the father of the boy, one Eddie Thomas, also an Indian, was married to relator by the Indian custom of marriage about 12 years ago, and that they lived together until the child was about 3 years of age, when the parents separated, and the boy was taken to his grandmother's, an Indian, one Elizabeth Thomas, where he lived up to the time of her death, which occurred about 2 or 3 years ago. Since that time he has lived with his aunt, the respondent, Sarah Rubin. Some interesting questions have arisen on the examination of this matter. Counsel for respondent raises the question of jurisdiction. The parties are Indians, wards of the United States government, living on their Indian reservation. There is no question in my mind but what this court has jurisdiction of these proceedings, and has the power to issue the writ. In People ex rel. Pruyne v. Walts, 122 N. Y. 238, 25 N. E. 266; it was stated by the court that "the common-law writ of habeas corpus was a writ in behalf of liberty, and its purpose was to deliver a prisoner from unjust imprisonment and illegal restraint. It was not a proceeding calculated to try the rights of parents and guardians to the custody of infant children. It was of frequent use, however, when children were detained from their parents or guardians on the grounds that absence from legal custody was equivalent to illegal restraint and imprisonment. In the case of children of the age of discretion, the object of the writ was usually accomplished by allowing the party restrained the exercise of his volition; but in the case of an infant of an age incapable of determining what was best for itself, the court or officer made the determination for it, and in so doing the child's welfare was the chief end in view. The purpose of the writ, as now regulated by the Code, is the same." Code Civ. Proc. § 2015 et seq. The Domestic Relations Law, Laws 1896, p. 222, c. 272, § 40, et seq., says: "The husband or wife being an inhabitant of this state, living in a state of separation without being divorced, who has a minor child, may apply to the Supreme Court for a writ of habeas corpus to have such minor child brought before such court; and on the return thereof, the court, on due consideration, may award the charge and custody of such child to either parent for such time, under such regulations and restrictions as the case may require, and may at any time thereafter, vacate or modify such order." This section is derived from Rev. St. (1st Ed.) pt. 2, c. 8, tit. 2, §§ 1-3. The sole requirement of the statute as to the status of the husband or wife living in a state of separation without being divorced is that he or she shall be an inhabitant of this state. It draws no line between color or race, white, black, or red, but declares that he or she must be an inhabitant. In the case before us relator is an inhabitant, is living in a state of separation from her husband, without being divorced, and the child is a minor. Consequently the court has jurisdiction.

Some dispute has arisen as to the legitimacy of the boy whose custody is here sought by the relator. While in the view I take of the case his legitimacy is not a fact of vital importance, nevertheless, it seems best to me to touch on that point in passing, since counsel for relator bases one of his strongest arguments on the allegation that the child is illegitimate; and in this connection the Indian custom of marriage must be explained. Eddie Thomas and the relator, father and mother, respectively, of the child, were married by Indian custom. This custom, as the undisputed evidence of several of the witnesses discloses (and some of these witnesses were leading people of the Onondaga Nation), consists merely in an agreement to live together as man and wife, and in following out that agreement by so doing until by mutual consent or otherwise a separation occurs. It, appears that this is one of the most ancient of the Indian customs, and is largely adhered to at the

present time by the Indians. It has also been made legal by the laws of this state. Laws 1849, p. 577, c. 420, §§ 3, 4, as found in 2 Cumming and Gil. bert's General Laws, p. 1686, § 3. I quote therefrom: "The laws of the state relating to the capacity to contract marriage, the solemnization of marriage, the annulment of the marriage contract and divorce, are applicable to Indians; and, subject to the jurisdiction of the peacemakers' courts of the Seneca Nation to grant divorces, the same courts shall have jurisdiction of actions arising thereunder as if such Indians were citizens; but Indians who have heretofore or shall hereafter contract marriage according to the Indian custom or usage and shall cohabit as husband and wife, shall be deemed lawfully married, and their children legitimate." This was re-enacted in the Indian law found in Laws 1892, p. 1574, c. 679, § 3. Applying this to the case in hand, I cannot see how the legitimacy of the child can be questioned, and by the undisputed evidence of the father himself, Eddie Thomas, he had no wife living when he married relator, so that the claim of the relator that the boy is illegitimate has no foundation whatever.

Leaving aside the question of what is best for the boy's welfare-the question which we deem of paramount importance in this case, and which we shall consider a little later-I must now touch on the relative rights of the relator and the respondent to the custody of the child. Relator is the mother and respondent is the aunt of the boy. The evidence of the relator was that the boy was forcibly taken from her by the father and placed with its grandmother. It further appears that he lived with said grandmother until her death, when he remained with the respondent. Purely, as between the mother and the aunt, the mother would undoubtedly be entitled to the custody of the child, were we to ignore questions as to the character of the parties and the best interests of the boy. It appears from the evidence of the mother herself, however, that she was accustomed to drink intoxicating liquors, and that she became intoxicated several times while the boy lived with her. It further appears that after separating from Eddie Thomas she lived with three different men, and for several years after said separation bore a questionable reputation. The result of the relator's assuming custody of the boy would be largely in doubt, in view of her past life and the uncertainty whether or not her acts would be repeated. Undoubtedly, the child was taken by force by the father, and placed with its grandmother, but the father's testimony was that he did so for the best interests of his child; and as the natural father of the boy, his right to place his child where he considered that his best interests would be conserved can only be commended and approved. He still wishes the boy to remain with respondent for the same reasons. It seems to me that the mother (the relator here) by her past life has forfeited her claim to the custody of the child. Further, it appears that for nearly eight years she never made any claim for the boy, or tried to obtain him, and that her first effort in that direction occurred some two months ago. Her motive for that effort seems to me to be quite apparent. It appears that, by a recent award of money by the United States government to the Indians, the sum of $100 has come to the boy, and the probability is that this will shortly be increased. The mother for eight years never made a move to obtain custody of her child until he came into some money. On the other hand. the respondent, even while the boy lived with his grandmother, bought his clothes and hired his washings done. It does not appear that the relator ever contributed a thing toward the support of the boy-her own child. Since the grandmother's death respondent has cared for the boy, actuated, so far as I can see, by no other motive than her affection and pity for him. It seems to me that the mother practically abandoned her child, and that in so doing she forfeited, in large measure, her right to his custody. In this connection the case of People ex rel. Wehle v. Weissenbach et al., 60 N. Y. 386, is in point. In that case a father petitioned for a writ of habeas corpus, seeking the custody of his daughter, an infant seven years of age. It ap peared that the father in 1869 placed the girl to board with the board of commissioners of charities and corrections of the city and county of New York paying a certain amount for her board. In 1870 defendants obtained the child from the commissioners, and claimed to hold her as an apprentice by virtue of indentures made with them by said commissioners. It appeared