Kirby v. Kirby

246 A.D. 532

Opinion

In an action for divorce, the Special Term made an order awarding the custody of both children to the father, and directing that the mother, or her attorney, deliver to the father the custody of the child Marie, theretofore in the custody of the mother, and cutting off alimony previously granted to the wife. This was done by the justice presiding at the third trial in which the jury disagreed, there having been two prior disagreements. Prior to the last trial, the plaintiff had made a motion to obtain the custody of the child Marie from the mother, which motion was denied, and no appeal had been taken. Upon the present application, no material change in circumstance was shown, the order apparently being based upon the testimony and occurrences at the third trial, as stated by the Special Term justice in his opinion in granting this motion. The record upon appeal is insufficient to sustain the order, and the order is reversed upon the law and the facts and the motion denied, without costs. Lazansky, P. J., Young, Hagarty, Carswell and Scudder, JJ., concur.