
    Arsenio Pessolano, Plaintiff, v. Maria C. Pessolano, Defendant.
    (Supreme Court, New York Special Term,
    February, 1901.)
    Divorce — Decree refused, on default, for insufficient proof.
    Although an action for an absolute divorce was uncontested, the court refused to grant the husband a decree against his wife, whom he charged with having been living in adultery, where the attempted identification of her by means of a photograph of herself and of her alleged paramour failed to show by independent proof that the man represented in the photograph might not have been her husband, and where the proof did not fix the period of the alleged adultery as before the marriage of the parties nor clearly show that the person served with the summons and complaint was in fact the defendant in the action.
    Uncontested action for an absolute divorce.
    John Palmieri, for plaintiff.
    No appearance for defendant.
   Gildersleeve, J.

This is an action for an absolute divorce instituted by Arsenio Pessolano, against his wife, Maria 0. Pessolano. The parties were married fourteen years ago, according to the husband’s testimony, and there is one child of the marriage, a girl now thirteen years of age. The defendant has not appeared in the action, and the cause was tried as an uncontested divorce ■case. The evidence of the adultery is as follows, viz.: The plaintiff identifies a photograph as that of his wife, the defendant. This photograph, however, has not been handed up with the papers, although it was marked in evidence. Mrs. Palaconi, the .housekeeper of Mo. 22 Baxter street, is put on the stand and testifies thus: “ Q. (Handing witness plaintiff’s Exhibit 1) Will jou look at that photograph and see whether you recognize the parties on it? A. I know them as man and wife.” She then .goes on to testify that these people, the originals of the photo.graph, occupied an apartment in her house and lived there as man and wife, and that they had five children. The witness does not say that the man was not the plaintiff, and the only evidence "that the photograph was that of the defendant is given by the plaintiff himself. This is clearly an insufficient identification of the defendant as the woman referred to by Mrs. Palaconi as living at Mo. 22 Baxter street, nor is it at all convincing proof of •defendant’s adultery. The next witness is Madelina Corelli, who "is asked: “ Q. Do you know the defendant, Maria C. Pessolano? A. Do you mean the wife? Yes. Q. Have you ever visited her while she was living with the co-respondent, Cero Caruci? A. Yes. Q. Where were they living at the time you visited them? A. In Elizabeth street, Mo. 125.” She then says that they occupied ■a whole floor there for six or seven months. The dates, however, are not given either by Madelina Corelli or by Mrs. Palaconi, and for aught that appears the events referred to by them might have been anterior to the marriage of the parties to this action. Miss ■Corelli is then asked: Q. How many children did they have when they lived there — do you know? A. One she had, and ■she was pregnant at that time.” We, therefore, see that plaintiff swears to one child, Mrs. Palaconi to five children and Miss ■■Corelli to one and pregnancy with another. Mrs. Palaconi swears that the originals of the photograph lived at Mo. 22 Baxter street, while Miss Corelli says that she visited defendant while she was living at Mo. 125 Elizabeth street. As no dates are given and the number of children varies so much, the evidence is somewhat indefinite. The plaintiff’s counsel should have had the photograph identified by some one other than the plaintiff, and should have brought out the dates with much greater particularity. The evidence, as to the service of the summons and complaint is that of a clerk in the office of Hr. John Palmieri, the plaintiff’s attorney, who swears that defendant was pointed out to him by Antonio.Pessolano, the brother of the plaintiff, who corroborates the statement of the clerk. The evidence on this subject, however, is somewhat too brief and meager, and the clerk and the plaintiff’s brother should.have given a more detailed account of the circumstances attending the service. The cause may be restored to the calendar for further proof and set down for trial on February,27, 1901.

Ordered accordingly.  