
    Antonio Garcia, Plaintiff, v. Florinda M. Garcia, Defendant.
    (Supreme Court, Kings Special Term for Trials,
    July, 1908.)
    Former adjudication — Adjudications operative as bar or as conclusive evidence — Verdict without judgment — Conclusive upon trial of remaining issues.
    In an action by a husband for an absolute divorce, where the wife interposes a counterclaim for a separation on the ground of abandonment, a jury having found against the plaintiff on the question of defendant’s alleged adulter}-, he may not to justify his abandonment introduce proof of conduct on the part of defendant after plaintiff’s abandonment which he proved before the jury to establish his allegations of defendant’s adultery.
    Action for divorce.
    George W. Case, Jr. (Charles I. McBurney, of counsel), for plaintiff.
    House, Grossman & Vorhaus (Louis J. Vorhaus, of counsel) ; for defendant.
   Stapleton, J.

The plaintiff began an action for absolute divorce; the defendant counterclaimed for a separation, alleging that the plaintiff abandoned her during the year 1900 and ever since refused to provide for her.

In plaintiff’s reply, he sets up in justification the misconduct of the defendant. On the issue of adultery, a jury has rendered a verdict in favor of the defendant. On the trial of the issues raised by the answer containing the counterclaim and the reply, the plaintiff admitted the abandonment and failure to provide for the defendant and offered in evidence the record of testimony of several witnesses, including that of defendant, taken upon the trial of the issue of adultery, contending that it showed a course of conduct on the part of defendant since the abandonment and during the period of nonprovision which justified the plaintiff in his attitude. The defendant insists that, as no evidence of the misconduct of the defendant prior to or contemporaneous with the abandonment was adduced and as the jury found for her on the issue of adultery alleged to have been subsequently committed, the court must decide for the defendant. The defendant objected to the introduction of the evidence as incompetent, irrelevant and immaterial. It is irrelevant, and I exclude all except defendant’s statement, Chase’s Steph. Dig. (2d ed.) 107, art. 32; Weeks v. Lowerre, 8 Barb. 530; Mutual Life Insurance Co. v. Anthony, 50 Hun, 101. The admissions of the defendant on the trial of the framed issues are admissible. Whiton v. Snyder, 88 N. Y. 299, 307.

They show an indiscreet course of conduct on the part of the defendant after the abandonment; but the jury has declared that she was not guilty of adultery, and the justice who presided at the trial has decided that the verdict was not contrary to the evidence.

The plaintiff did not, under his special defense of jus tifieation, prove a fact justifying the abandonment at or before the act, although he alleged many. I am aware that it has been held that “it is not necessary for a defense in an action for separation that the defendant should establish adultery on the part of the plaintiff; misconduct that would subject the defendant to humiliation and disgrace in the comm unity, making Mm an object of popular contempt would constitute cruelty on the part of the plaintiff which would forbid the interposition of a court of equity in her behalf.” Deisler v. Deisler, 59 App. Div. 207.

Indeed, there may be cases where the justification, based upon the misconduct of the complaining party after the act of abandonment, would frustrate her claim for a separation under section 1765 of the Code of Civil Procedure and in accordance with elementary principles and familiar maxims of equity jurisprudence. Crow v. Crow, 7 Civ. Pro. 423; Doe v. Roe, 23 Hun, 19.

In this case, however, the plaintiff, replying to defendant’s counterclaim, has chosen to rely in his proof on a course of conduct on the part of the defendant subsequent to an admitted and, for all that appears, an unwarranted abandonment, which conduct has • been innocently construed by the constitutionally established tribunal. I would have before me only the same evidence, if I admitted it. I would be required to accept as conclusive the verdict for one purpose in the final decree (Code Civ. Pro., § 970) and ignore it for another. A judgment for the plaintiff would forever exonerate him from the obligation to support the wife whom he confessedly abandoned for alleged misconduct which a jury finding, necessarily incorporated in the same decree, declares to be without merit. In the absence of compelling authority, no conclusion involving such serious consequences should be reached.

I direct judgment of separation, forever, for the defendant, on her counterclaim, on the merits.

Judgment for defendant.  