Second Department, May, 1921. [Vol. 197 consequently I cannot, without a usurpation of authority, assume or exercise that species of jurisdiction which belongs exclusively to a court of equity." Another case cited is People ex rel. Pruyne v. Walts (122 N. Y. 238). In that case (at p. 241) the court, by BROWN, J., said: "This case is very similar in its facts to In re Welch (74 N. Y. 299). There, as here, the contest was between the testamentary guardian appointed by the will of the father and those to whose custody the mother had committed the child. There, as here, the Special Term dismissed the writ, without prejudice to further proceedings, for reasons affecting the health and welfare of the child. This court dismissed the appeal, holding that such reasons justified the withholding the custody of the child from its legal guardian, and that the matter was one so purely within the discretion of the Special Term that its conclusions would not be reviewed." This is a clear, unmistakable holding that the court may, in a habeas corpus proceeding, consider the welfare of the child; in other words, exercise equity powers. The appellant, I think, misreads this opinion and interprets it as a dismissal of the proceeding upon legal grounds, with permission to renew for reasons affecting the health and welfare of the child. I do not so construe this opinion. The writ was dismissed for reasons affecting the health and welfare of the child, without prejudice to further proceedings. The Court of Appeals has recently had occasion to examine this question, and in People ex rel. Riesner v. N. Y. N. & C. Hospital (230 N. Y. 119, 124), by CARDOZO, J., when construing section 486 of the Penal Law, it said: "The writ of habeas corpus was limited in its origin to cases of restraint under color or claim of law (N. Y. Foundling Hospital v. Gatti, 203 U. S. 429, 438; People ex rel. Pruyne v. Walts, 122 N. Y. 238, 241). In time, however, it was extended to controversies touching the custody of children, which were governed, not so much by considerations of strictly legal rights, as by those of expediency and equity and, above all, the interests of the child [N. Y. Foundling Hospital v. Gatti; People ex rel. Pruyne v. Walts; Matter of Knowack, 158 N. Y. 482; Matter of Waldron, 13 Johns. 418; The Queen v. Gyngall, 1893, 2 Q. B. 232]. We find in this statute no suggestion of a purpose, if we were to assume that App. Div. 176] Second Department, May, 1921. there was power (N. Y. Constitution, art. 1, sec. 4), to abridge the function of the writ in this field of its extension." In that case the removal of a child from legal to other custody for the benefit of the child was approved. I think, therefore, that the law is firmly established that upon the return of a writ of habeas corpus the court can exercise equity powers and make a decision dependent not alone upon the question of legal custody but based, as stated above, upon the grounds of expediency and equity and, above all, the interests of the child. That brings us, then, to the determination of the question as to whether the decree of the Court of Law and Chancery of the State of Virginia awarding the custody of the child to its general guardian, the appellant herein, is res adjudicata. That proceeding, as recited above, was a proceeding exactly like this, instituted in a court of competent jurisdiction, having unquestionable jurisdiction of the proceeding and of the parties, and in it it was determined that the best interests of the child required her to remain in the custody of her aunt. The courts of this State have held that a decree or final order in a habeas corpus proceeding is an adjudication which may be pleaded as res adjudicata. (Mercein v. People, 25 Wend. 64; Matter of Price, 12 Hun, 508, 511; People ex rel. Keator v. Moss, 6 App. Div. 421; Matter of Quinn, 2 id. 103, 104; People ex rel. Ludden v. Winston, 34 Misc. Rep. 21; affd., 61 App. Div. 614; Matter of Lederer, 38 Misc. Rep. 668; People ex rel. Multer v. Multer, 107 id. 58; People ex rel. Lawrence v. Brady, 56 N. Y. 182; Matter of Lee, 220 id. 532, 538.) In Mercein v. People (supra) the court held: "An adjudication of a court of record or of an officer having authority to act in the matter on the question of the custody of an infant child brought up on habeas corpus, may be pleaded as res adjudicata, and is conclusive upon the same parties in all future controversies relating to the same matter, and upon the same state of facts." Under the Constitution of the United States, "Full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State" (U. S. Const., art. 4, § 1); and they shall have such effect in any court within the United States as they have, by law or usage, in the courts of the State from which they are taken. (See Second Department, May, 1921. [Vol. 197 Act Cong. May 26, 1790, being 1 U. S. Stat. at Large, 122, chap. 11; now U. S. R. S. § 905.) I think there is no force in the respondent's contention that there was a lack of jurisdiction, 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 voluntary. Neither can the binding force of that decision be in any degree mitigated by claiming that the proceeding was not well tried. There was no occasion for the appellant to prove the law of the State of Virginia. In the absence of proof to the contrary, it is assumed to be the same as our own. (Monroe v. Douglass, 5 N. Y. 447; Mount v. Tuttle, 183 id. 358.) The cases cited by the respondent are not applicable. They are cases where the infant was not before the court, or the appointment of a guardian made where the infant was brought into the jurisdiction of the court by trickery, such as Matter of Hubbard (82 N. Y. 90); People ex rel. Winston v. Winston (31 App. Div. 121). 121). After citing these cases respondent says in his brief: " So in the case at bar, while the Virginia court obtained jurisdiction, it should never have entertained jurisdiction, as the infant was a resident of New York." We, of course, are not called upon to pass upon the propriety of the action of a court of a foreign State. If with jurisdiction it has acted, that action is binding upon us. The Special Term avoided the conclusive character of this action by holding that its determination was not final. The determination of the court was, "the Court is of the opinion 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." That was a final determination. It finally determined the question then before it, but recognized the fact that as the child grew older a different custody might be desirable; that the circumstances of the parties might change. It perhaps was an unnecessary precaution. It reserved the right to the court to change the custody of the child when the situation of the parties made such change desirable. It merely stated what the court undoubtedly had the power to do without any such reservation. Therefore, to justify this proceeding, the relator must show that there had App. Div. 176] Second Department, May, 1921. been a change of conditions so as to make the previous decision no longer applicable. In Mercein v. People (25 Wend. 64), at page 99, it is said: "According to adjudged cases, the proceedings before the chancellor were a bar to any re-investigation of any matters which occurred previous to the date of his final order. Such unhappy controversies as these may endure until the entire impoverishment or the death of the parties, renders their farther continuance impracticable. If a final adjudication upon a habeas corpus is not to be deemed res adjudicata, the consequences will be lamentable. This favored writ will become an engine of oppression, instead of the writ of liberty. An examination of the cases on this subject will show that the general rule laid down by Chief Justice DE GREY, in the case of the Duchess of Kingston, 11 State Trials, 261, as to the conclusiveness of a judgment of concurrent or exclusive jurisdiction upon the same matters between the same parties, is applicable to all final adjudications upon a habeas corpus." The petition is barren of any allegation, there is no proof and the court does not find that the appellant is not as competent and is not in every way just as well fitted to care for this child at the time of this trial as she was at the time of the former trial. The court merely disagreed with the Virginia court as to in whose custody the best interests of the infant required her to be placed. The decision of the Virginia court must be deemed res adjudicata of the questions involved in this proceeding. The order herein awarding the custody of the child to the relator should be reversed and the proceeding dismissed. BLACKMAR, P. J., MILLS, RICH and PUTNAM, JJ., concur. Order awarding custody of the child to relator reversed, and proceeding dismissed. Second Department, May, 1921. [Vol. 197 KATHERINE H. HOMEYER, Respondent, v. HARRY YAVERBAUM Appellant. Second Department, May 20, 1921. False imprisonment liability of store owner for acts of manager manager did not act within his authority in arresting plaintiff owner not responsible - evidence not showing that owner was informed of situation and took no action in relation thereto. The defendant, the owner of a store, is not liable to respond in damages to the plaintiff for false imprisonment, where it appears that during the absence of the defendant, the manager, solely upon suspicion that the plaintiff had stolen a handbag, accused her of the theft, forbade her to leave the store, threatened to search her and sent for the police, for the manager was not acting within the scope of his authority. It cannot be presumed that a master, by intrusting his servant with his property, and conferring power upon him to transact his business, thereby authorizes him to do any act for its protection that he could not lawfully do himself if present; the defendant would not if he had been present have been justified in arresting and detaining the plaintiff. Evidence that some one telephoned or was directed to telephone the defendant that there was a woman in the store who would not leave, does not show that the defendant was informed of the situation and took no action in relation thereto, and the verdict for the plaintiff cannot be justified on that ground. KELLY, J., dissents. APPEAL by the defendant, Harry Yaverbaum, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 1st day of March, 1920, on the verdict of a jury, and also from an order entered in said clerk's office on the 19th day of February, 1920, denying defendant's motion for a new trial made upon the minutes. Abraham H. Kesselman, for the appellant. James F. Nugent [Evan S. Webster with him on the brief], for the respondent. |