Opinion
October 18, 1971
In a habeas corpus proceeding concerning custody of the three children of the parties' marriage, the appeal is from (1) a judgment of the Supreme Court, Westchester County, entered March 31, 1971, which, after hearing, sustained the writ and awarded relator custody of the children and counsel fees; (2) an order of said court entered August 6, 1971, which denied appellant's motion for a new trial; and (3) a further order of said court, entered August 18, 1971, which denied appellant's motion to modify the judgment, excepting that part of the order which denied relator's cross motion to punish appellant for contempt of court. Judgment and orders reversed insofar as appealed from, on the law and the facts, without costs, and appellant's motion for a new trial granted. In our opinion, appellant, through newly discovered evidence, has cast sufficient doubt upon the correctness of the original judgment to warrant a new hearing. We are of the further opinion that the trial court should speak in chambers to the oldest child. Hopkins, Acting P.J., Shapiro, Gulotta, Christ and Benjamin, JJ., concur.