This is an appeal from an oder dismissing a writ of habeas corpus brought to determine the custody of an infant. This proceeding was commenced on March 12th, 1942, by the service of the writ and the petition herein on the respondents Josephine Moore Orton and Edward H. Orton. The respondents' return was served on March 16th, 1942.
The issues were tried before Mr. Justice Henry G. Wenzel, Jr., sitting at Special Term, Part II of the Supreme Court, Nassau County, New York, on March 16th, 1942.

      PLEASE TAKE NOTICE that Albert Arthur Scattergood, the petitioner above-name, hereby appeals to the Appellate Division of the Supreme Court, Second Department, from the final order made in the above entitled proceeding on the 7th day of April, 1942, and entered in the Office of the Clerk of Nassua County on the 8th day of April, 1942, dismissing the writ of habeas corpus herein and the proceedings has thereon, and that this appeal is taken from each and every part of said order, as well as from the whole thereof.

      This is an appeal by the petitioner, Albert Arthur Scattergood, from an order dismmising a writ of habeas corpus brought to determine the custody of his infant son. This proceeding was commenced on March 12, 1942 by the service of the writ and petition herein on the respondent Josephine Moore Orton, the infant's maternal aunt, and her husband, the respondent Edward H. Orton.

      The issues were tried before Mr. Justice Henry G. Wenzel, Jr., sitting at Special Term, Part II of the Supreme Court, Nassau County, New York, on March 16th, 1942. The respondents' return was served on petitioner's attorney on March 16th, 1942, but not until after the evidence had been closed. The Court's memordandum decision was handed down on March 25th, 1942, holding that the petitioner was not entitled to the custory of his son as against the respondents herein on the ground that the "corporeal well being" of the child required that it remain with respondents. The order appealed from which gives custory of the child to responsents without leave to the father to make a further application or even giving him the right of visitation, was granted on April 7th, 1942, and entered in the Nassau County Clerk's Office on the following day.

• The petitioner, Albert Arthur Scattergood, and his wife, Mary Moore Scattergood, lived in Quincy, Massachusetts, a suburb of Boston. Both husband and wife were Christian Scientists and both worked at a nearby Christian Science rest home or retreat, the husband as a cook and the wife as a nurse (Record on Appeal, fols 120-122; 213-14). Mrs. Scattergood, the respondent Josephine Moore Orton, and respondents' counsel, H. Bradley Moore, Esq., were sisters and brother (fol. 105). Mrs Scattergood died in childbirth in the early morning of December 1st, 1940, her child, the infant herein, having been born a few hours before on November 30th, 1940 (fol 106). . .

• Mrs Orton testified . . . that (Albert) Scattergood tried to make her promise that she "would bring Gene up as a Christian Scientist" (fol. 188), and that she replied: "I could never promise anything. I didn't know the circumstances that would come up, and that I had been reared in Christian Science - I went to the Christian Science Church, and I had the books, but I could never promise to teach Gene Christian Science, or make him go to any church. I wanted him to be broadmined enough to understand every church, and he said, 'I can't let you have him under those conditions.' And I said, 'Now is the time to decide those things,' and that was all that was said at the time."