
    Olga M. Tuck, Appellant, v. Henry Webster Tuck, Respondent.
    First Department,
    February 8, 1907.
    Husband and wife — divorce — admission of adultery by defendant at trial — collusion.
    When at the trial of an action for divorce the defendant admits that he committed adultery in company with a detective whom the plaintiff had employed to watch him, and there is evidence that the offense was committed without the consent, procurement or connivance of the plaintiff, and it appears from the defendant’s testimony that he acted intentionally and deliberately, judgment for the plaintiff on the report of a referee should be entered.
    Moreover, when the defendant has admitted other offenses not committed in company with the detective hired by the plaintiff, and the general allegations of the complaint as to adultery are amended to conform to the proof, the plaintiff is entitled to a decree.
    Appeal by the plaintiff, Olga HVX. Tuck, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of December, 1906, denying the plaintiff’s' motion to confirm the report of a referee and for an interlocutory judgment of, divorce.
    
      Otto T. Hess, for the appellant.
    
      William I£ Sullivan, for the.respondent;
   Ingraham, J.:

This action was for divorce upon the ground of adultery. The complaint alleged that on the 30th day of January, 1906, at the city of Denver in the State of Colorado, and elsewhere, the defendant committed-adultery with one Nellie Spencer, and that the defendant at divers other dates and times, and before the commencement "of this action, and at divers places, committed adultery with various persons whose names are unknown to the plaintiff. The defendant interposed an unverified answer denying these allegations of the complaint, and the issues upon the consent of the parties were referred to a referee to hear and determine. The trial proceeded before the referee* both the plaintiff and the defendant appearing by counsel. There was evidence before the referee that tiie adultery alleged to have been committed was without the consent, proeurement or connivance of the plaintiff, and .that the defendant committed - adultery iii Denver, Colo. The defendant was then called on his own behalf and testified ■ to facts which would justify a finding that he committed adultery. He testified that the detective who was examined by the plaintiff made his acquaintance there and together they went to a house of prostitution where the defendant stayed all night, and that he returned to the same house on the following night and again stayed all night; that he met this detective again on the following night and went with him to. another house of prostitution which was the occasion testified to by the detective. There was no deceit practiced upon the defendant, and it appears from' his oWn testimony that, knowing what he was doing, lie intentionally and deliberately committed the offense. The proof, therefore, is not that of the detective and prostitute, -blit the sworn.evidence of the defendant himself as to the commission of the •offense.' The defendant also testified to Ms relations with, a woman in the city of Hew York, some time prior to his going" to . Denver, which would' justify a finding of adultery committed in Hew York at that time, - .

After the defendant had testified’ the plaintiff moved to amend the complaint .so as to make it conform to the proof, by alleging the commission of adultery in the city of Hew York, based upon the' testimony of the defendant, and this was granted without objection by the defendant. . ", • ■ ■

The referee reported that the defendant had committed adultery in Denver at the -time • specified in the evidence; and upon this report being presented to the court, the court refused to enter a decree upon the ground -that the plaintiff was chargeable with the . suggestion made. by. the detective, and thus the offense iii Colorado was with' her privity or procurement, and' was not sufficient to form the basis' of a judgment of divorce. 'Whatever may be said about the effect of the commission of such an offense, where the defendant is induced fio commit it by an agent of the plaintiff under such circumstances as would justify the court in finding that but for such inducement by the agent,the offense would not have been committed, in this case it appears from the' defendant’s. own evidence that lie understood what he was doing, acted on his own volitión, and deliberately and intentionally committed adultery. I think upon the evidence of the defendant the court was bound to grant to the plaintiff a judgment of divorce, and that the ride stated by the trial -judge was not applicable where the defendant, himself, testified that he intentionally and deliberately committed the act which justifies a divorce. There is nothing to justify a finding that this plaintiff employed the detective to aid or connive at the commission of the offense, or that she ever had any knowledge that he did so, or that either she or her attorney was in any way responsible for his acts. If ‘there was any doubt about the sufficiency of the occurrence in Denver, the defendant’s testimony sustained the charge that he had committed adultery in Hew York, before he went to Denver.' This was within the complaint and was sufficient' to justify a judgment. The defendant, by his' own testimony, is shown to be a dissolute and dissipated man, without any regard for his obligations to his wife, and'I think the plaintiff was entitled to judgment.

The order denying the application for judgment is, therefore, reversed, with ten dollars-costs and disbursements, and an interlocutory judgment for a divorce granted, with costs.

Patterson, P. J., Laughlin, Clarke and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and judgment ordered as directed in opinion, with costs. Settle order on notice.  