The People of the State of New York ex rel. Louise De Pascalis, Respondent, v. Alfred De Pascalis, Appellant, 22 A.D.2d 932

In a habeas corpus proceeding by the petitioner mother to obtain the custody of a nine-year-old child, the defendant father appeals from a judgment of the Supreme Court, Richmond County, entered September 10, 1964, which sustained the writ and inter alia awarded custody of the child to the mother. Judgment reversed on the law, without costs, and proceeding remitted to the Special Term for the purpose of: (1) holding a new hearing; and (2) making a determination de novo, on the basis of the proof adduced upon such hearing, of the issues raised by the pleadings*. No questions of fact have been considered.

We are of the opinion that the court erred in excluding evidence offered by the father with respe,ct to the mother’s conduct and behavior with others, which would reflect on her fitness to have the custody of their nine-year-old child. Beldock, P. J., Ughetta, Brennan, Hill and Hopkins, JJ., concur.