I concur for the modification as indicated in the opinion hy Justice Benjamin. I do not condone the mother’s conduct and ¡believe it to he contrary to good morals. However, the question before us is deeper than this. It is to determine where the children will be best located. The record indicates that they are well behaved and have been well cared for in the mother’s charge. To transfer them to the uncertainty of the accommodations provided by the father which at the time of the hearing were meager at best would not be in the interests of the infants. The award of the children to the father was made upon the understanding that he would be married and would thereafter have a suitable home. The record does not indicate the marriage or such suitable home and upon the facts here I do not approve the transfer of custody from the mother to the father.
Shapiro and Christ, JJ. concur in separate opinions with Benjamin, J.; Hopkins, Acting P. J., and Martusoello, J., dissent and vote to affirm.
Order of the Supreme Court, ¡Nassau County, entered February 5,1974 modified, on the law and the facts, by striking therefrom all the decretal provisions other than .the one which awarded a counsel fee and substituting therefor a provision denying the petition. As so modified, order affirmed, without costs.