App. Div. 172] First Department, May, 1921. The plaintiff was allowed to amend his complaint to conform to the proof, and has recovered judgment for the full amount claimed. The plaintiff's theory is that he was entitled to a commission of two dollars per ton for having effected the sale of 1,000 tons, pursuant to an agreement made on the 7th day of May, 1920. This is an entirely different cause of action from that alleged in the complaint, which was that the defendant had sold to the plaintiff 1,000 tons of steel rails on the 19th day of May, 1920, and that thereafter the plaintiff resold the same to Caragol at a profit of two dollars per ton and turned his contract over for execution to the defendant. The court did not have the power at Trial Term to allow an amendment to the complaint substantially changing the cause of action, nor did the court have the power to grant the motion to amend to conform to the proof which was received over the defendant's objection and exception. (Grossman Mfg. Co., Inc. v. N. Y. C. R. R. Co., 181 App. Div. 764, 769.) The evidence was improperly received. The plaintiff failed entirely to prove the second cause of action alleged in the complaint and the motion to dismiss made at the close of the plaintiff's case and at the close of the entire case should have been granted. The second cause of action, therefore, should be dismissed and the judgment reduced to $1,272, with interest and costs, and as modified affirmed, with costs to the appellant. CLARKE, P. J., LAUGHLIN, SMITH and MERRELL, JJ., concur. Judgment modified by dismissing second cause of action and reducing judgment to $1,272, with interest and costs, and as so modified affirmed, with costs to appellant. Second Department, May, 1921. [Vol. 197 In the Matter of the Application of MYLES W. STANDISH, Respondent, for a Writ of Habeas Corpus to Bring up the Body of MARY ELIZABETH STANDISH, an Infant. -- HAZEL SIMONS TRUITT, Appellant. Second Department, May 13, 1921. Parent and child— habeas corpus by parent to secure child from guardian - court not limited to determining question of legal custody final order of Virginia court in habeas corpus proceedings is res judicata determination of Virginia court final though court reserved right to change custody under changed conditions no change in condition shown authorizing change in custody. On the return of a writ of habeas corpus granted on the application of a father for the purpose of securing possession of his child who was held by its guardian, the court can exercise equity powers and make a decision depending not alone upon the question of legal custody but based upon the grounds of expediency and equity, and, above all, the interests of the child. On an application for a writ of habeas corpus made by a father, it appeared that prior to the institution of the proceedings the father had instituted habeas corpus proceedings in the State of Virginia in which the respondent, the child's guardian, duly appeared though at the time thereof the guardian and the child, without the knowledge of the relator, were residents of this State, and the Virginia court after a hearing ordered that it was for the best interests of the child that it remain for the present in the custody and control of its guardian, but the court reserved the right to change the custody of the child when the situation of the parties made such change desirable. Held, that the proceedings in Virginia were exactly like the present proceedings and were instituted in a court of competent jurisdiction, having unquestionable jurisdiction of the proceedings and the parties, and the final order in said proceedings is res judicata of the questions involved in the present proceedings, and said final order is entitled to full faith and credit in this State under section 1 of article 4 of the Federal Constitution. There is no force in the relator's contention that there was a lack of jurisdiction in the Virginia court or that the proceedings were deprived of their conclusive character by the fact that the appellant was not then a resident of Virginia and her appearance was voluntary. The determination of the Virginia court was final, notwithstanding the fact that it reserved the right to change the custody of the child when the situation of the parties made such change desirable. App. Div. 176] Second Department, May, 1921. The relator has not shown by allegation or proof that the appellant is not as competent and is not in every way just as well fitted to care for the child at the time of the trial in the present proceedings as she was at the time of the Virginia trial, and so he did not establish that conditions have changed which would make it now proper to change the custody of the child, and, therefore, the order sustaining the writ of habeas corpus directing that the child be surrendered to the father was improperly granted. APPEAL by Hazel Simons Truitt from an order of the Supreme Court, made at the Dutchess Special Term and entered in the office of the clerk of the county of Westchester on the 23d day of August, 1920, awarding the custody of the abovenamed infant to Myles W. Standish. Humphrey J. Lynch [William A. Sawyer with him on the brief], for the appellant. Frederick P. Close [Lee Parson Davis with him on the brief], for the respondent. JAY COX, J.: The appellant is the maternal aunt of the infant Mary Elizabeth Standish, whose custody is in controversy in this proceeding. The relator resides in Detroit, Mich., where he married Mary Simons November 11, 1914. This marriage did not prove to be a happy one, and after a few months they separated. In October, 1915, while they were still separated, Mary Simons Standish gave birth to the above-mentioned infant. After the birth of said child the relator contributed nothing to her support or that of her mother, and in 1917 the mother of said infant instituted an action for divorce against the relator in the State of Michigan on the grounds of cruel and inhuman treatment, non-support and abandonment. Pending the trial of that action and against relator's opposition, an order was made directing him to pay one dollar per day for the support of his wife and child. He was compelled to pay this sum with difficulty. In November, 1917, a final decree of divorce was entered in said action, awarding the custody of the child to the mother and directing the relator to pay one dollar per day for the purposes above mentioned. APP. DIV.- VOL. CXCVII. 12 Second Department, May, 1921. [Vol. 197 Sometime thereafter the divorced wife took up her residence in Norfolk, Va., where she resided until her death, October 3, 1918. During this time the relator evinced no interest in his former wife or their child. He wrote to his former wife just once to ask her to fill out a questionnaire in relation to the draft, his purpose being to show that he was obliged to contribute to the support of his former wife and child. Shortly prior to her death, Mrs. Standish married one John J. Carr, with whom she resided until she died. It was the mother's wish that her sister, the appellant, should have the custody of her child. Since the death of the mother the child has remained in the custody and control of her aunt and it is conceded that that is in every way a proper home and proper custody for the child. After the death of the mother, on the 10th day of October, 1918, an order was duly made appointing the appellant and John J. Carr guardians of said infant. The jurisdiction of the court and the legality of its action are expressly admitted. Thereafter, the relator went to Virginia and instituted in the Court of Law and Chancery of that State (it is stipulated that this is a court of competent jurisdiction, the same as the Supreme Court of this State) a habeas corpus proceeding to obtain the custody of said child. In obedience to the writ therein, said infant was produced in court and the proceedings duly and legally had therein. All the issues raised were tried and determined and the court made a decree therein wherein it determined "that it is best for the interest of said infant that it remain for the present in the custody and under the control of its aunt, Hazel Simons Truitt." The decree further provides that the father shall have reasonable opportunity of seeing his child. That decree is dated January 21, 1920, and there has been no appeal therefrom or application to modify the same although said decree contains this provision: "It is further ordered that these proceedings remain upon the docket of this Court in order that such further proceedings may be had or orders entered as the change of conditions in the life or requirements of said infant may dictate as best for her interest and welfare." Prior to the beginning of the lastmentioned proceeding the appellant had moved from the State of Virginia to Bronxville, in the State of New York. Apparently in the course of that proceeding the relator learned App. Div. 176] Second Department, May, 1921. of the change of residence of the appellant, and he then came to this State and on the 17th day of May, 1920, instituted this proceeding, a return was made, a traverse filed and the court proceeded to try and determine these questions: a. Whether under her appointment as guardian the appellant had the legal custody of said infant and, if so, could that custody be inquired into and any determination made in this proceeding as to the custody in which the interests of the infant would be best served. b. Were the Virginia habeas corpus proceedings res adjudicata? After a trial of these issues a decision was made awarding the custody of the child to the father. The appellant urges the following reasons why the decree or order herein should be reversed: First, "Habeas corpus, being a legal remedy, will not lie to take a child from its legally appointed general guardian." The appellant's contention under this point is that habeas corpus is a legal remedy and in determining to whom the custody of this child shall be awarded the court cannot consider the welfare of the child but must be guided solely by the question of the legal custody, and that, as in this case, the aunt (appellant) has been appointed the guardian of the child, the writ must be dismissed. That the purpose and design of the writ is to relieve from illegal restraint and that there can be no illegal restraint where there is legal custody. The appellant's attorney cites many cases which he claims support his position, but the case upon which he places the most reliance and which apparently most strongly favors his contention is People v. Wilcox (22 Barb. 178). Quotations are made from this case which unequivocally assert all that appellant claims, but upon an examination of the whole opinion I think that the reason the learned judge did not exercise his chancery powers was not because upon the return of such a writ the court could not exercise equity powers, but because the writ was, in the first instance, returnable before a Supreme Court commissioner and, in the absence of such commissioner, was heard by a justice of the Supreme Court. In the course of his opinion the learned judge said: "I am entirely satisfied that upon this writ I possess no other powers than such as are possessed by a Supreme Court commissioner under the statute, and that |