
    Frank Griffin, Resp’t, v. Barbara Griffin, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 23, 1893.)
    
    Divorce—J udgment.
    In an action for a divorce on the ground of adultery, the defendant in her answer alleged adultery by plaintiff, and on the trial gave evidence tending to prove the same. The referee made no finding as to said allega, tion, but found that a decree should be found in favor of plaintiff without reeard to the evidence adduced as to the counterclaim. Held, error; that such finding was in violation of § 1758, subd. 4, of the Code.
    Appeal from judgment in favor of plaintiff, entered upon report of a referee in an action for divorce.
    
      Losey & Marcey, for app’lt; Anson S. McNab, for resp’t
   Macomber, J.

The judgment entered upon the report of the referee herein should be reversed, and a new trial granted. The defendant in her answer alleged the guilt of the plaintiff, thus putting the question of the plaintiff’s guilt into the controversy. Evidence on the trial was adduced to prove, and did prove without doubt, the guilt of the plaintiff; but in regard to this portion of the testimony the referee says nothing in his report, but finds that' the decree of divorce should be found against the defendant, and in favor of the plaintiff, without regard- to the testimony adduced by the defendant upon that branch of her case, opened up by the counterclaim, and also, to that extent, in violation of paragraph 4 of § 1758 of the Code of Civil Procedure, which provides that the plaintiff is not entitled to a divorce, although adultery is established; “ where the plaintiff has also been guilty of adultery under such circumstances that the defendant would have been entitled, if innocent, to a divorce.’’ Paul v. Paul, 11 St. Rep., 71, and cases there cited.

J udgment reversed, and a new trial granted, with costs to abide the final award of costs.

Dwight, P. J., Lewis and Haight, JJ., concur.  