
    DAVIDSON v. DAVIDSON.
    (Supreme Court, Appellate Division, First Department.
    November 5, 1909.)
    -Divorce (§ 129*)—Adultery.
    Where, in an action for divorce for adultery, the evidence showed extreme intimacy between defendant and a woman other than his wife, the fact that actual adultery was not established by eyewitnesses did not preclude a divorce.
    [Ed. Note.—For other cases, see Divorce, Cent. Dig. §§ 411-441; Dec Dig. § 129.*]
    Laughlin, J., dissenting.
    Appeal from Special Term, New York County Action for divorce by Fannie Davidson against Charles S. Davidson. From a judgment for defendant, entered after trial at Special Term, plaintiff appeals.
    Reversed, and new trial ordered.
    Argued before PATTERSON, P. J., and INGRAHAM, Mc-EAUGHLIN, LAUGHLIN, and SCOTT, JJ. .
    M. E. Harby, for appellant.
   PER CURIAM.

The evidence points irresistibly to the guilt of the defendant. While it is possible that the extreme intimacy between the defendant and the woman not his wife may have stopped short of actual guilt, it is in the highest degree improbable. The mere fact that no one saw the act performed is not controlling.

Judgment reversed, and new trial ordered; costs to appellant to abide event.

LAUGHLIN, J., dissents.  