(dissenting):
I dissent. As the case contains counter charges, and a. former trial was decided in defendant’s favor; as the present custody- of the children is the result of the plaintiff’s abandonment of them;; as they are' very young and no serious- injury has apparently been-occasioned by their mother’s care of them, and as the case can be *475tried speedily on the merits if the plaintiff wishes, I think it would be wiser not to interfere with the discretion of the Special Term.
Order reversed, without costs, and custody awarded to the father, with such provision for access by the mother as indicated in the opinion of Jenks, J-.