Opinion
March 8, 1939.
Present — Sears, P.J., Crosby, Lewis, Cunningham and Dowling, JJ.
Order reversed on the facts, without costs, and motion denied, without costs. Memorandum: The affidavits presented, when considered as a whole, convince this court that the best interests of the infant, Jack Bradstreet, will be served by continuing him in the custody of his father, who lives with the child's grandparents, instead of transferring his custody to his mother, who has remarried. We deem the purpose underlying the decision of the Special Term that Jack might be brought up in the same family with his younger brother insufficient ground for the order made in view of the determination in that respect which had previously been made by the court when the separation case was heard. No change bearing on the interest of the infant Jack has occurred since the judgment in the separation except the passage of years and the marriage of the defendant. All concur. (The order modifies a decree of separation by awarding the custody of an infant to the defendant.)