Opinion
Argued May 12, 1958
Decided June 25, 1958
Appeal from the Appellate Division of the Supreme Court in the first judicial department, SAUL S. STREIT, J.
Abraham L. Pomerantz and Julian J. Linde for appellant. Irving I. Erdheim for respondent.
Whether or not there was legal justification for the physical assaults upon and abandonment of his wife by the appellant was, on the present record, a question of fact. Since the trial court's decision on that question has been affirmed by the Appellate Division, it is beyond our purview. The decision on the matter of the custody of Lewis Jay, youngest of three children to the marriage, is also unimpeachable here. The evidence tending to establish the mother's devotion and fitness as a custodian, even when considered with the disadvantages consequent upon the difference between the mother's chosen religion and that to which the child had earlier been exposed, provided a reasonable basis for the trial court's exercise of discretion. That matter, therefore, creates no issue of law ( Harrington v. Harrington, 290 N.Y. 126; Kruczek v. Kruczek, 264 App. Div. 242, affd. 289 N.Y. 826).
The judgment of the Appellate Division should be affirmed, without costs.
Chief Judge CONWAY and Judges DESMOND, DYE, FULD, FROESSEL, VAN VOORHIS and BURKE concur.
Judgment affirmed.