William F. Powers, Appellant, v. Hortense Powers, Respondent

William F. Powers, Appellant, v. Hortense Powers, Respondent. Second Department, May 3, 1907. Husband and wife — divorce — permission to divorced wife to see children " denied. When a wife, defendant in an action for divorce, has been guilty of gross mis- • conduct and the final judgment has given the exclusive custody of the children to the husband and several applications by the wife Jor permission, to see them at certain times have been denied, it is an abuse of discretion to grant such permission in .the face of the former decisions to the contrary. Appeal by the plaintiff, William F. Powers, from an order of the Supreme-Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 21st day. of November, 190.6, granting the- -defendant leave to see her children and have them in her custody,- six hours every week. Duncan Edwards [Edward H. Néary, Jr., with him on the brief], for the appellant. • -. John K. Erskine, Jr., for the respondent. [MAJORITY — Per Curiam :] Per Curiam : An' interlocutory judgment of divorce was entered against the defendant o'n November 21, 1905, after a jury had found her guilty of adultery. The guilt of the defendant was gross. ' Such judgment gave the .exclusive custody of the children to the husband. On May 14, 1906, the defendant tried before another judge to get custody of the children by means'of the writ of habeas corpus, but failed after a hearing. On the application for the final juclgment, before another judge the defendant applied to have leave put in the judgment for her; to see the children periodically. After a full hearing this was denied, and final judgment entered' on June 7,-1906. Eleven days later on motion before another judge an order was made that she might see them and have them in her custody periodically. This order must have been inadvertently granted, for the granting of it does not comport with the orderly administration, of justice. The matter had been maturely passed'upon too often and too recently to be upset as it was. The disturbance of the children in this way cannot be to their benefit and peace. The order should be reversed and the motion denied. ' - .'Jenks, Gaynor and Miller, JJ., concurred; Hooker and Rich, JJ., dissented. Order reversed, with ten dollars- costs and disbursements, and motion denied, with costs.