| N.Y. App. Div. | Jun 22, 1943
On the merits, under all the facts and circumstances disclosed in this record, we think the custody by the father should not be changed. The order entered April 15, 1942, appealed from should be reversed, the writ dismissed and the infant child of the parties should remain in the custody of the father Henry E. Luria with the right of the mother to visit the child while in the father’s custody at all reasonable times and with the further right of either party to apply to the court for further directions on the showing of a change of circumstances affecting the welfare of the infant.
In view of our disposition of the appeal from the order entered in the habeas corpus proceeding, the appeal from the order denying the stay should be dismissed as academic.
Martin, P. J., Townley and Dore, JJ., concur; Untermyer and Cohn, JJ., dissent and vote to affirm.
Order entered April 15, 1942, reversed, the writ dismissed, and the infant child of the parties shall remain in the custody of the father Henry E. Luria with the right of the mother to visit the child while in the father’s custody at all reasonable times and with the further right of either party to apply to the court for further directions on the showing of a change of circumstances affecting the welfare of the infant. Appeal from order entered April 9, 1942, denying motion for a stay dismissed. Settle order on notice.