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Trow's Printing and Bookbinding Company agt. Hart.

of purchasers or assignees having the right. But the point in question was not under consideration. The moving party in that case was a judgment creditor of the defendant in attachment.

As to the next point raised by appellant, it seems clear that a purchaser of a portion of the attached property has acquired an interest in the attached property. There seems to be no ground for holding that the interest mentioned in the section must embrace all the property attached. Respondent on this question refers us to the Royal Insurance Co. agt. Noble (5 Abb. [.V. S.], 54), but that case determines only that an application by the defendant to procure the discharge of the attachment by giving security must be made as to all the attached property; that he cannot choose what portion he will release and give security for that portion only (old Code, sec. 240, 241). The case has no application to a purchaser from the judgment debtor moving to vacate the attachment. The new Code (section 687) it may be said, passing, now permits defendant to obtain the discharge of the attachment as to a portion of the attached property on giving an undertaking

The third point taken on the appeal is that the judge, at special term, should have received the additional affidavits in support of the attachment, which plaintiff offered in answer to the motion. The motion was made on the affidavit on which the attachment was granted “and all the papers filed and served in said attachment proceedings in the above action.” This confined the papers to those used to obtain the warrant. Appellant argues that it embraced all the papers in the judgment roll.

The notice, however, distinguishes between the papers in the action and those in the attachment proceedings. The Code (section 636) provides what must be shown to obtain the warrant. An affidavit and an undertaking are essential; nothing more. The motion was not made on the complaint nor on the testimony taken on the application for judgment.

Trow's Printing and Bookbinding Company agt. Hart.

The case of Ives agt. Holden (14 Hun, 402) is clearly distinguishable from this, because the motion there was made on the complaint as well as the affidavit for attachment. As the motion was made

upon

the
papers

on which the warrant was granted, the plaintiff could not put in additional affidavits in support of the attachment (Code, section 683; Steuben County Bank agt. Alberger, 56 Flow., 245).

As to the sufficiency of the affidavit upon which the attachment was granted, the decisions are conflicting on the question whether the want of venue makes the affidavit a nullity (Barnard agt. Darling, 1 Barb. Ch., 218; Cook agt. Staats, 18 Barb. R., 407); but the absence of an indispensable allegation makes the affidavit defective. The Code (section 636) provides that the affidavit must show that the plaintiff is entitled to recover a sum stated therein over and above all counter-claims known to him. This is a wholesome provision, and, as the statute must be strictly observed, the allegation in the precise form, or in substance, is as necessary as the statement of a cause of action or of the grounds on which the attachment is applied for. This view has been taken by the Supreme Court (Lyon agt. Blakesly, 19 Hun, 299, General T., Second Department, 1879). The allegation in question is not found in the affidavit of Edward Lange, on which the attachment was issued, and the attachment was properly vacated.

The order should be affirmed, with costs.
Daly, C. J., and Van HOESEN, J., concur.

VOL. LX

25

Matter of Pray.

'SUPREME COURT.

In the Matter of PRAY.

Habeas corpus custody of children.

In a contest between husband and wife for the custody of their two

children, aged five and six years, where there is no objection to the mother personally, it is for the welfare of the children, considering their tender years, that they be left with her. An inquiry as to the father's illtreatment of his wife is pertinent as bearing upon the father's right to take the children from their mother.

New York Chambers, January, 1881.

This is a proceeding by habeas corpus. Upon the return to the writ the matter was referred for the taking of evidence. The referee was directed to report thereon with his opinion. The object of the proceeding was to determine the father's right to the control of his two children, who were with the mother. The motion was to confirm the report of the referee, who had decided in favor of the father. The parents were living separate and apart.

S. V. R. Cooper, for motion.

Roger A. Prior, opposed.

Van Vorst, J.-I cannot accept the conclusion, under the facts and circumstances of this case, as they appear by the papers, in so far as they are conceded, that the father is absolutely entitled to take to himself the control of the persons of these two children — the one a daughter, aged six years, and the other a son, aged five years.

It is obvious that these children are of an age to require a mother's care and training, and, if there is no objection to her personally, I am of opinion that it would be for the true inter

Matter of Pray.

$

est of the children that they should secure such care and training at her hands.

The referee is of opinion that under the facts both parents are irreproachable. If that be so, it might well be urged that as far as the welfare of the children is concerned, and which is the matter, considering their tender years, which is to be now chiefly considered, it would be best to leave them with their mother. But a question arose before the referee which I apprehend bears upon the father's right to take from their mother the personal control of the children.

The return of the respondent to the writ of habeas corpus charges the relator with repeated acts of brutality towards her without any justifying cause, if a cause for such conduct could in any case be supposed to exist. The relator was asked the question, “Did you ever strike yonr wife?” This question was objected to as “irrelevant and as not bearing on the question as to his fitness for the custody of the children.” The objection was sustained and the testimony was excluded. This ruling, I think was erroneous.

The question was, without doubt, asked to sustain the charges in that regard contained in the return to the writ of habeas corpus. The inquiry was proper, and bears upon the question of the fitness and propriety of taking these children from a mother pronounced by the referee to be irreproachable. I am not prepared to hold that inquiry as to the conduct of a husband toward his wife, does not bear upon the question as to whether, when they are living in a state of separation, he should take from her the children of the marriage so young as these are found to be. For I must conclude that as a man is to his wife in this regard, 80 he would be towards his children.

As an inquiry into the husband's acts and conduct in this regard will bear in the end upon the question in issue, the referee's report cannot be confirmed, but the report should be sent back for further testimony.

McCormack agt. McCormack.

SUPREME COURT.

FANNIE MCCORMACK, as executrix, and another, agt. FANNIE

McCORMACK and others.

Will Trust estate created by will which provides for accumulations for

benefit of adults as well as minors ir void Effect where annuity to widoro is also charged upon real estate after-born child.

Though where a trust estate created by will provides for accumulations

for the benefit of adults as well as minors, it is void under the provisions of the Revised Statutes — yet, where an annuity to the widow, provided for under this trust estate is also charged upon the real estate,

that survives the failure of the trust Such annuity, however, is subject to a proportional deduction in favor of

an after-born child, who takes as if the father died intestate.

Special Term, November, 1880.

Henry E. Knox, for plaintiff.

Richard E. Knox, for adult defendants.

R. Clarence Dorsett, guardian ad litem for infant defendants.

LAWRENCE, J.- It is conceded by all the counsel in this case that the third subdivision of the testator's will, in respect to the accumulation of the rents, profits and income of his estate, is in violation of the provisions of the Revised Statutes, for the reason that the accumulation is for the benefit of adults as well as minors. In that conclusion I fully concnr (See 2 R. S., 1103, sec. 37, 6th ed. ; 2. R. S., 1167, sec. 3, 6th ed.; Mason agt. Jones, 2 Barb., 230; Boynton agt. Hoyt, 1 Denio, 53; Kilpatrick agt. Johnson, 15 N. Y., 326).

I have also concluded, although with some hesitation, that the provisions in favor of the widow, in lieu of dower, can be upheld notwithstanding the invalidity of the third clause of

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