In 1915 there was duly entered in this case a judgment dissolving the marriage between the plaintiff and the defendant and awarding to the plaintiff a liberal alimony and the custody of her minor child, Margaret Thorp, whose age was then six years. In April, 1919, the court made an order forbidding the plaintiff to remove from her residence to an apartment house over a pool room in Jamestown, and from permitting the child to associate with one Mary Grant, except when in the company of her mother. From that order the plaintiff appeals. The order is made on the judgment roll and on the affidavit of defendant. It avers that the plaintiff continuously and against the best interests of the child permits her to be in the company of Mary Grant, who is imbued with a hatred of the defendant; that the purpose of the plaintiff is to remove the child from her commodious home into a certain building owned by Mary Grant and to place the child in a flat over a pool room frequented by men who stand around the entrance to the room and often use vile language; that in using the flat and passing in and out of it the child would hear bad language; and defendant fears that an association of the child with Mary Grant may estrange it from her father.
Lena Thorp, the plaintiff, makes affidavit that during the life of *116tbe child she has at all times taken the utmost care of her and has ever been watchful of her mental and physical development; that the welfare of the child has always been her first consideration. The plaintiff also shows good reason for leaving her home and moving into the flat and avers that it is one of the most desirable flats in Jamestown; that it is within three blocks of the public school; that one of the flats in the building is the residence of Mary Grant and her husband and that she, Mrs. Grant, is one of the teachers in the public schools of Jamestown, where she has been teaching for eighteen years; that she is an educated and refined woman whose moral character is above suspicion; that the pool room is a clean, sanitary place and well conducted; and that the plaintiff has never heard Mrs. Grant speak ill of defendant or say a thing of him in the presence of the child. Her affidavit is well corroborated by that of Mrs. Grant.
In the order, as formulated, the learned judge says, in effect, that the order is granted not only on the affidavits but also on his own personal knowledge of the situation and circumstances affecting the relation of the parties, etc. That is in no way proper. If the judge had knowledge of material facts on which to base a decision, he should have stated the same by certificate or affidavit, so that a reviewing court might consider the same.
On the facts, as disclosed by the affidavits, no good reason is shown for interfering with the plaintiff’s custody of the child or her right to remove her residence to a desirable flat, nor for any order in regard to the association of the child with Mrs. Grant. Defendant had no reason for thinking or suspecting that a lady of good character and high repute would think of doing the child so great an injury as to say a word to lessen her pride of birth and her love for a father who has made for her ample and generous provisions.
It appears, however, that more than a year has elapsed since the making of the order appealed from, and that portion of the order which restrains the plaintiff from removing to the fiat over the pool room is moot. Judge Birdzell is of the opinion that that portion of the order should be affirmed and hence disagrees to this extent with the opinion of the writer. But he is further of the opinion, in accord with the views of the writer, that upon this record there does not appear to be sufficient reason for prohibiting ordinary communication *117between, the child and Mrs. Grant. The decision of this court is that the order appealed from is reversed in so far as it relates to Mrs. Grant, with costs to the appellant.
Birdzell and Grace, JJ., concur.