Opinion
January 26, 1959
After the institution of a separation action in New York in January, 1954, respondent went to Portugal where appellant and the two children of the marriage were then residing, and there instituted a proceeding for custody in June, 1954. After extensive testimony and inquiry, the courts of Portugal granted custody to appellant in 1956, although the December, 1954 New York judgment of separation granted custody to respondent. On the basis of the Portuguese decree, appellant moved in the New York action to eliminate the provisions of the New York judgment granting custody to respondent. The motion was denied. Thereafter, appellant moved for leave to renew his motion to modify, on the basis of a stipulation made by the parties in 1958 in Portugal with respect to custody. The motion to renew was granted and, on such renewal, the motion to modify the judgment was again denied. The appeal is from so much of the order entered thereon as denied the motion to modify the New York judgment of separation. Order insofar as appealed from affirmed, with $10 costs and disbursements. New York is not now bound to give effect to the Portuguese custody decree made in 1956 or to the stipulation made in 1958. ( Matter of Bachman v. Mejias, 1 N.Y.2d 575. ) Nolan, P.J., Wenzel, Beldock, Murphy and Ughetta, JJ., concur.