
    McNAMARA a. McNAMARA.
    
      New York Common Pleas;
    
    
      Special Term, May, 1859.
    Divorce.—Affirmative Relief.
    In an action against the husband for divorce on the ground of cruel and inhuman treatment, the charge was not substantiated, but, on the contrary, the defendant alleged and proved that instead of his having been guilty, the plaintiff had been guilty of such conduct as rendered it unsafe and improper for him to cohabit with her.
    
      Held, that a divorce, a mensa et thoro, to which the evidence showed the defendant to be entitled, could be granted in the present action under the provision of section 274 of the Code, allowing the defendant affirmative relief. Whether the defence of adultery can be interposed in an action for divorce, on the ground of cruel and inhuman treatment,—Query ?
    
    Application for judgment in an action for divorce.
    The facts are stated in the opinion.
    
      
       Compare Diddell a. Diddell, 3 Ante, 167.
    
   Hilton, J.

The complaint of the plaintiff alleges cruel and inhuman treatment on the part of the defendant, and concludes with a demand for judgment for limited divorce or separation, with alimony.

The answer contains a denial of these charges, sets up as a defence the bad conduct of the plaintiff, and charges her generally with adultery with persons unknown, concluding with a demand of judgment that the marriage tie be dissolved.

A reference appears to have been regularly made, with directions to take proof of all the facts charged in the pleadings, with the usual direction to report the same to the court, with the • opinion of the referee thereon; and no objection was taken to the defendant setting up adultery as a defence in the action, until evidence in support of it was offered before the referee, when the objection was overruled, and testimony offered to sustain that defence was admitted.

It may be that the objection came too late. Had it been made in time, it is very probable the defence of adultery would be stricken out, upon the ground that it could not be interposed in an action like the present. (McIntosh a. McIntosh, 12 How. Pr. R., 289.)

But it is unnecessary to express any opinion upon this question, now for the first time presented to the court, as I do not concur in the opinion of the referee, that the evidence shows the plaintiff to have been guilty of adultery, and that the charges in the answer, in this respect, have been proven.

Her conduct appears to have been loose, and of a character not at all to be commended; but I do not think any act of criminality has been shown, nor any circumstances sufficient to warrant the conclusion at which the referee has arrived.

It does appear, however, and as the referee has reported, that instead of the defendant having ill-treated the plaintiff, as she alleges in her complaint, she has been guilty of such conduct towards him as renders it unsafe and improper for him to cohabit with her, and the allegations in his answer in this respect have been fully sustained by the testimony.

It was decided by the late Chancellor Walworth, in Perry a. Perry (2 Paige, 501), and I am not aware that the decision has ever been questioned, that section 12 of the act of April 10, 1812 (see Laws of 1812,249), which authorizes a decree of separation from bed and board on the application'of the husband, in the same causes and for the like causes as feme coverts were entitled to under sections 10 and 11 of the act entitled “ An act concerning divorces and for other purposes,” passed April 13, 1813 (Rev. Laws, 200, § 2), was not repealed at the time of the adoption of our present Revised Statutes, and still remains in force.

Therefore, as the evidence shows that the defendant is entitled to a judgment of divorce, a mensa ei thoro, no reason exists why it should not be granted to him in the present action. The statute referred to, it is true, authorizes such a decree in terms, upon the application of the husband by a bill of complaint filed by him, but the provisions of the Code (§ 271) are sufficiently comprehensive to cover all such cases, and to permit the court to give such judgment in an action, either for or against a plaintiff or defendant, as may be warranted by the evidence at the trial. Or, in the language- of the section referred to, the court “may grant to the defendant any affirmative relief to which he may be entitled.”

Judgment will accordingly be entered decreeing a separation forever between the parties, upon the ground that the. conduct of the plaintiff has been such towards her husband, the defendant, as to render it unsafe and improper for him to cohabit with her.  