Etta A. Light, Appellant, v. George K. Light, Respondent

Etta A. Light, Appellant, v. George K. Light, Respondent. Second Department, February 28, 1908. Husband and wife—separation—dismissal of complaint and counterclaim for divorce — power to award custody of children. Where a husband sued for separation on the ground of cruelty makes a general denial and recriminates by charging the plaintiff with adultery and demands a divorce, and the court although dismissing both the complaint and the-counterclaim finds that the plaintiff left her husband ‘‘without just cause or provocation,” it may. award the custody of a child to the defendant. Appeal by the plaintiff, Etta A. Light, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 8th day of July, 1907, upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing the plaintiff’s complaint and the defendant’s counterclaim upon the merits and awarding the custody of the child to the defendant. William Adams Robinson, for the appellant. D. Theodore Kelly, for the respondent. [MAJORITY — Gayhok, J.:] Gayhok, J.: The plaintiff sued her husband for a separation for alleged cruelty. The answer is a general denial, and then for a defence and counterclaim it alleges adultery against the plaintiff and prays for an absolute divorce. Each party prayed for the custody of the child. The learned trial judge made findings against the allegations of cruelty and adultery, and further found that the plaintiff had left the bed and board of the defendant “ without just cause or provocation”. The conclusion of law was that the complaint and the counterclaim be dismissed on the merits, and that the defendant should have the care and custody of the child. The decision in Davis v. Davis (75 N. Y. 221) that where a wife is defeated in an action by her for separation the' judgment cannot give her the custody of the children and make provision for their maintenance by the husband, has no - application here to the husband. It is true that he was also- defeated in his counterclaim of a divorce for adultery; but in the wife’s action'the court had to award the custody of the child (Code Civ. Pro., sec. 1771),. and properly awarded it to the husband (Waring v. Waring, 100 N. Y. 570; People ex rel. Sternberger v. Sternberger, 12 App. Div. 398). Section 1766-only relates to a case where a judgment of separation is given, while section 1771 relates to the final judgment in a separation case, whatever it may be. The judgment should be affirmed. . Jerks, Hooker, Rich and Hiller, JJ., concurred. Judgment affirmed,'without costs.