MEMORANDUM.
We affirm, with costs, for the reasons stated on the opinion of Mr. Presiding Justice A. FRANKLIN MAHONEY at the Appellate Division ( 64 A.D.2d 320). As the court said in Matter of Nehra v Uhlar ( 43 N.Y.2d 242, 251), "Priority, not as an absolute but as a weighty factor, should, in the absence of extraordinary circumstances, be accorded to the first custody awarded in litigation or by voluntary agreement" (emphasis supplied).
We would also note that, because the attorney for the petitioner husband was associated with the same law firm as was the Trial Judge prior to her designation to the Bench, the respondent wife asked the Judge to recuse herself. That application was denied. Though there is no canon of judicial ethics which specifically requires disqualification under these circumstances, we believe it the better practice for the court to have disqualified itself and thus to maintain the appearance of impartiality.
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.
Order affirmed, with costs, in a memorandum.