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 *568divorce 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.