
    Benjamin H. Rogers, appellant, v. Zaidee Rogers, respondent.
    [Submitted July 10th, 1905.
    Decided March 5th, 1906.]
    Appeal from a decree dismissing a petition for divorce advised by Vice-Chancellor Garrison, whose opinion is reported in 67 N. J. Eq. 534.
    
    
      Mr. Francis Scott, for the appellant.
    
      Mr. Addison Ely, for the respondent.
   Gummebe, Chief-Justice.

1' concur in the conclusion reached by the vice-chancellor that the petitioner’s petition should be dismissed, but I am not able to agree with him as to the grounds of dismissal. The ground of the petitioner’s application for a divorce was the alleged adultery of the defendant with one William Hobson, a youth .eighteen years old. The vice-chancellor found difficulty in determining from the proofs in the case whether the offence charged against the defendant had in fact been committed by her, and, without reaching a conclusion upon that point, advised the decree upon the ground that if there had been adulterous intercourse between the defendant and Hobson, her wrong-doing had been condoned by the petitioner by his subsequently indulging in sexual intercourse with her on at least two occasions.

The petitioner on the witness-stand denied any resumption of marital relations with his wife after he had discovered (as he supposed) that she had been unfaithful to him, and my examination of the proofs in the cause satisfies me that he tells the truth. I am therefore compelled to determine whether the petitioner lias shown by a preponderance of the evidence the truth of the charge which he brings against the defendant, and the conclusion which I reach, after a careful consideration of all the evidence, is that, although a case is made out which raises grave suspicions as to the wife’s fidelity, and satisfies me that she allowed Hobson to take liberties with her which no self-respecting wife would have permitted, it is not convincing that she took the last fatal step of surrendering her body to his sexual embraces.

For failure of proof in this regard, therefore, I shall vote to affirm this decree. I am authorized to state that Justice Fort and Judges Vredenburgh and Dill concur in these views.

Swayze, J.

I concur in the result reached in this cause, but not in the findings of fact expressed in the opinion. Without expressing any opinion upon the sufficiency of the proof of adultery, I think the evidence justified the conclusions of the vice-chancellor that if the defendant was guilty, the petitioner had condoned the offence.

I am authorized to say that Justice Garrison concurs in this view.

For affirmance—The Chief-Justice, Garrison, Fort, Garretson, Swayze, Bogeet, Vredenburgh, Green, Gray, Dill —10.

For reversal—Dixon, Pitney, Vroom—3.  