Bates v. Bates (274 A.D. 834, 1948)

The defendant appeals from an interlocutory judgment of divorce granted by the Supreme Court upon the report of an official referee, and entered in the Office of the Clerk of the County of Clinton, on the 12th day of September, 1947, which judgment also dismissed the defendant wife’s counterclaim for separation and awarded custody of the three children of the marriage to the plaintiff husband. The plaintiff’s evidence, which was not incredible as a matter of law, amply supports the decision of the referee and the judgment granted thereon. The trier of the facts believed this evidence and his findings may not be disturbed. (Boyd V. Boyd, 252 N. Y. 422.) There is no credible evidence to indicate that the court erred in granting custody of the children to the plaintiff. However, that is a matter which may again be considered if the circumstances warrant. Judgment affirmed, without costs. Judgment unanimously affirmed, without costs. Present — Hill, P. J., Heffernan, Brewster, Russell and Deyo, JJ.