
    Davis v. Davis.
    (Superior Court of Buffalo
    General Term,
    July, 1893.)
    Where, in an action for divorce, the evidence of the commission of adultery by the defendant is not at all conclusive and of such satisfactory character as carries conviction to the mind, and evidence is admitted of defendant’s previous conduct, whether general or specific, a judgment in plaintiff’s favor will he reversed.
    Appeal from adjudgment for plaintiff entered on the report of a referee in an action for divorce. The opinion states the case
    
      M. A. Gearon, for plaintiff (respondent).
    
      Guddeback, Fenefick & Ouohie, for defendant (appellant).
   Per Gwriam.

This is an appeal from a judgment entered upon the report of a referee in an action for divorce on the ground of adultery.

We think the judgment in this case must be reversed for • errors in the' admission of evidence on the trial. Considerable evidence was taken under objection, and clearly the rulings of the referee cannot be sustained. It is insisted by the counsel for the respondent that the evidence is immaterial, and that the errors are consequently harmless. While we recognize and give full force to the rule that a new trial should not be awarded in actions for divorce, unless for substantial error, showing that a fair trial has not been had and affording reasonable doubt as to the justice of the result (Forrest v. Forrest, 25 N. Y. 501), yet we do not think that it can be fairly said that no force was given to the testimony improperly admitted, or that it was harmless. The proof of the commission of the adultery of the defendant is not at all conclusive and of such a satisfactory character as carries conviction to the mind. The defendant denies the adultery, and the plaintiff's witnesses are disputed in many particulars, and the proof of defendant’s previous conduct must have exercised a considerable influence on the mind of the referee in determining where the truth rested. As was said in one case, the defendant was not being tried for her general conduct, but on specific charges. The testimony had no tendency to establish either of the charges, and the plaintiff had not the right to show general or specific conduct of the defendant. Beadleston v. Beadleston, 20 N. Y. St. Repr. 21.

We think, for the reasons above stated, the judgment should be reversed, and a new trial ordered, with costs to abide the further order of this court.

Judgment reversed, new trial ordered.  