Opinion
May 17, 1943.
In an action for separation, where the defendant husband died before the conclusion of the trial, order denying plaintiff's motion to vacate the judgment, insofar as appealed from, reversed on the law, without costs, and the motion to vacate judgment granted, without costs. The action abated upon the death of William T. Hoff prior to the conclusion of the trial ( Matter of Crandall, 196 N.Y. 127; Bryon v. Bryon, 134 App. Div. 320), and the court was without power to make any disposition of the custody of the children of the marriage. Moreover, the record does not contain evidence which, if the action had not abated, would have been sufficient to justify depriving the plaintiff of the custody of her children. Appeal from judgment dismissed, without costs. Close, P.J., Hagarty, Carswell, Taylor and Lewis, JJ., concur.