
    George Lowenthal, Resp’t, v. Maria E. Lowenthal, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed December 28, 1895.)
    
    1. Divorce—Practice.
    Upon the trial of an action for divorce, defendant has a right to have the issue, taken by the answer to a charge of adultery, tried by a jury.
    2. Same.
    But the court can, when the action comes before it for determination and after verdict, reconsider the other matters within the issues, and disregard them, for the purposes of the result to be determined by the decision.
    3. Same.
    Where there is no support in the evidence for the finding that any act of adultery of the defendant was committed with the _ consent, connivance, privity or procurement of the defendant, the court is at liberty, in its decision following the verdict, to disregard the answer so made by the jury to that interrogatory, and determine such question to the contrary.
    4. Trial—Irrelevant evidence.
    Upon the trial of such action, an inquiry as to whether a certain locality had a reputation as a resort of persons for immoral purposes creates no prejudice against defendant, where it does not appear that she and her companion ever went to that place.
    5. Same—Instruction.
    Upon tiie trial of such action, a refusal to instruct the jury that a divorce should not be granted without evidence which is, after scrutiny, satisfactory and can command the confidence of a careful and prudent and cautious judge or jury, is not error, where the court charged that the question for the jury was whether the plaintiff’s case had been proved by a fair preponderance of evidence.
    Appeal from a judgment in favor of plaintiff, and from an order denying a motion, and also an order setting aside an answer of the jury to the thirteenth interrogatory.
    Quincy Van Voorhis, for app’lt ; David Hays, for resp’t.
   BRADLEY, J.

—The action is divorce. Of the fourteen qu.es- ' tions framed for trial by jury, the first one only was submitted to them. That one related to the charge of adultery, and the jury found against the defendant on that issue. The court directed the jury to answer by their verdict the other of the questions in the negative. The jury did so. Thereafter it was discovered that the court, by misapprehending the form of the question numbered thirteen, directed the answer to it, in effect, contrary to that intended. The thirteenth was the inquiry on the subject of the consent of the plaintiff to any of the alleged acts of adultery. Upon the plaintiff’s motion, the answer of the jury, thus directed and given to that interrogatory, was set aside, and judgment by order was directed for the plaintiff. The defendant’s motion, made on a case and exceptions, for a new trial, was denied. The right of the defendant was to havé the issue taken by the answer to the charge of adultery tried by jury. Code, § 1757 ; Conderman v. Conderman, 44 Hun, 181 ; 7 St. Rep. 789. It was so tried. The subsequent proceedings in such case are the same as that in which issues are framed for jury trial in a case where neither party can, as of right, require such a trial, except that the findings of the jury on the issue of adultery is conclusive, unless the verdict be set aside, or anew trial granted. Code, § 970. The court, therefore, when the action came before it for determination, and after verdict, could reconsider the ' other matters within the issues, and disregard them, for the purposes of the result to be determined by the decision. Whitney v. Whitney, 76 Hun, 585 ; 58 St. Rep. 272, and cases there cited.

There was no support in the evidence for the finding that any act of adultery of the defendant was committed with the consent, connivance, privity, or procurement of the plaintiff, and the court was at liberty, in its decision following the verdict, to disregard the answer so made by the jury to that interrogatory, and determine such question to the contrary. Acker v. Leland, 109 N. Y. 5 ; 14 St. Rep. 23. The affirmative and onus of proof were with the defendant upon that issue. McCarthy v. McCarthy, 143 N. Y. 235 ; 62 St. Rep. 184. It follows that there was no error prejudicial to the defendant in settmg aside the answer given by the jury to the thirteenth interrogatory.

The question whether the charge of adultery against the defendant was sustained by proof was one of fact for the jury. It was, by the charge of the court, fairly submitted to them, and the verdict, as found in that respect, was warranted and supported by the evidence, to which it is unnecessary here to specifically refer. The place of the occurrence upon which the charge of adultery was made.was in what called the “Hooker Road,” which led to land adjacent to the river. A witness was asked by the plaintiff’s counsel whether that place adjacent to the river had a reputation as a rendezvous of persons for immoral purposes. The defendant’s objection was overruled, and exception taken, and the witness answered in the affirmative. While the evidence may not have been competent or relevant, it is not seen that the defendant could have been prejudiced by it. It does not appear that she and her companion went to that place adjacent to the river on the occasion referred to, or that they were there at any time;- and therefore the character of that place could have had no pertinence or consideration of the j-ury bearing upon the question submitted to them. It seems quite clear that such evidence must necessarily have been entirely harmless.

The court was requested by the defendant’s counsel to charge the jury that “a divorce should not be granted without evidence which is, after careful scrutiny, satisfactory, and can command the confidence of a careful and prudent and cautious judge or jury.” This was well enough,'and such instruction may properly have been given to the jury. But the charge made, in answer to the request to that effect, was that the question for them was whether the plaintiff’s case had been proved by a fair preponderance of evidence; thus instructing the jury that the support of the charge against the defendant was dependent upon such preponderance of evidence, and was all that the court was legitimately required to charge on the subject of the request. No error, therefore, can be predicated upon the exception to the refusal or failure of the court to charge as requested.

The final completion of the trial in such a case as this should be represented by decision of the court, and the dieision inay state concisely the grounds upon which the issues have been decided, and direct judgment thereon. Code, § 1022. In the present case an order was made by the court directing judgment in favor of the plaintiff for the relief demanded in the complaint. The decision provided for by the statute last cited is to be made and filed, and the defeated party is at liberty to file the exceptions to it. The order referred to is not the decision contemplated by the statute. The plaintiff’s attorney may deem it necessary to obtain from the trial court decision, and-file it, with a view to completely perfect the judgment; and, whether the defendant .may or not thereupon file exceptions, and take another appeal from the judgment, it is not now necessary here to inquire. Instead of making a motion for alleged irregularity in that respect, the defendant has appealed from the judgment, as well as from the order denying the motion for a new trial, and we have considered the case on the merits, and reached the conclusion that there was no error at the trial to the prejudice of the defendant, and that the judgment and order should affirmed.

All concur, except WARD, J., not voting.  