7 A.D.2d 703 (1958)

Helen Malagisi, Appellant, v. John Malagisi, Respondent

Appellate Division of the Supreme Court of the State of New York, Fourth Department.

November 12, 1958

Judgment insofar as it denies a separation affirmed, without costs of this appeal to either party, and insofar as it awards custody of the children to the defendant reversed on the law and facts and that issue remitted to the Special Term for further proceedings in accordance with the memorandum.


The plaintiff wife brought this action against her husband for a separation. The defendant husband counterclaims for separation on his part. The judgment appealed from denies a separation to either party. We affirm that part of the judgment appealed from. There are three children born of the marriage whose ages at the time of the trial were 11, 8 and 6½ years respectively. The judgment appealed from grants sole custody of the children to the father. We conclude upon this record that it was an improvident exercise of discretion to award sole custody to the father.


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