Dunn v. Dunn — 179 A.D. 920

Majority

p. 920

Elizabeth Dunn, Appellant, v. Lawrence Dunn, Respondent.

Headnote

Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office December 30, 1916, dismissing the complaint on the merits and awarding the custody of children to defendant.

An examination of the record satisfies us that the findings of improper conduct on plaintiff’s part are -without evidence to support them; that plaintiff produced sufficient proof of her allegations of cruel and inhuman treatment of her by defendant; that defendant did not prove provocation or excuse therefor; that there was no proof that plaintiff was an improper person to have the care of her children, and the awarding of them to defendant was without justification or warrant in law. The judgment appealed from will, therefore, be reversed and a new trial ordered, with costs to appellant to abide the event. The following findings of fact are reversed: 4, 5, 6, 7, 8, 9, 10, 12, 13, 14, 15, 16, 17 and 18; also conclusions

p. 921

of law 1, 2 and 3. The order of July 24, 1916, awarding plaintiff alimony and the custody of her children will be reinstated. Scott, Page and Shearn, JJ., concurred; Smith, J., dissented. Judgment reversed and new trial ordered, with costs to appellant to abide event. ■ Order to be settled on notice. _