There were but two questions to be decided at the trial of this action: (1) Did the defendant abandon the plaintiff, and (2) if so, was the abandonment justified? There can be no doubt with reference to the abandonment for the defendant admitted she left the plaintiff. We are of the opinion that the abandonment was not shown to have been justified by the evidence submitted on the trial. It would serve no useful purpose to recite the testimony in detail.
Several phases of this controversy have been before judges in both New York and Kings counties, and the facts have in all instances been found in favor of the plaintiff and against the defendant. The custody of the children of the parties was awarded to the plaintiff, and a motion for alimony and counsel fee pendente lite made by the defendant in an action brought for a separation in Kings county was denied on the ground that there was no reasonable probability of success on the part of the wife. The opinion in that case, reported in the New York Law Journal on September 12, 1928, very carefully considers the questions here *571involved and the court reached the same conclusion arrived at by the trial court herein.
It is important to note that every judge who has had this matter under consideration appears to have found the ultimate facts in favor of the plaintiff husband, and against the defendant wife.
We think the law as stated in Boyd v. Boyd (252 N. Y. 422) very applicable to this case. There the court said: “In a case so ■ close as this, let the court of first instance decide. Face to face with living witnesses the original trier of the facts holds a position of advantage from which appellate judges are excluded. In doubtful cases the exercise of his power of observation often proves the most accurate method of ascertaining the truth.”
We believe it impossible to read this record without coming to the conclusion that the abandonment was not justified.
The judgment should, therefore, be affirmed.
Finch, P. J., concurs.
Judgment reversed, with costs, and judgment ordered for defendant as indicated in opinion. The findings inconsistent with this determination should be reversed and such new findings made of facts proved upon the trial as are necessary to sustain the judgment hereby awarded. Settle order on notice.