Order, entered on July 18, 1960, granting petitioner's application and awarding custody to the petitioner, reversed, on the law, on the facts, and in the exercise of discretion, with $20 costs and disbursements to appellant and the matter remitted to Special Term to take proof on the matters in issue. The serious and important question of custody here involved should not have been decided from the bench, summarily, without the taking of testimony and particularly on the inadequate papers before the court. In the circumstances here present a hearing should have been held to elicit directly the pertinent facts with opportunity for cross-examination and the segregation of proper evidence from hearsay. Furthermore, the court should have ascertained, among other things, the preferences of the two children involved, they being 15 and 16 years of age, respectively. Settle order on notice.
Concur — Botein, P.J., Breitel, Rabin, Valente and McNally, JJ.