
    GRIFFIN v. GRIFFIN.
    (Supreme Court, General Term, Fifth Department.
    June 23, 1893.)
    Divorce—Adultery of Plaintiff.
    In an action for divorce on the ground of adultery, defendant alleged and introduced evidence that plaintiff was guilty of adultery. Helé, that a finding for plaintiff could not be sustained where the referee in his report says nothing about the evidence of plaintiff’s guilt; Code Civil Proc. § 1758, par. 4, providing that plaintiff is not entitled to a divorce though adultery is shown, where plaintiff has also been guilty.
    Appeal from judgment on report of referee.
    Action by Frank Griffin against Barbara Griffin for divorce on the ground of adultery. From a judgment in favor of plaintiff, defendant appeals.
    Reversed.
    
      Argued before DWIGHT, P. J„ and LEWIS, MACOMBEE, and HAIGHT, JJ.
    Losey & Marcey, for appellant.
    Anson S. McHab, for respondent.
   MACOMBEE, J.

The judgment entered upon the report of the referee herein should be reversed, and a new trial granted. The defendant, in her answer, alleged the guilt of the plaintiff, thus putting the question of the plaintiff’s guilt into the controversy. Evidence on the trial was adduced to prove, and did prove without doubt, the guilt of the plaintiff; but in regard to this portion of the testimony the referee says nothing in his report, but finds that the decree of divorce should be found against the defendant and in favor of the plaintiff, without regard to the testimony adduced by the defendant upon that branch of her case opened up by the counterclaim, and also, to that extent, in violation of paragraph 4, § 1758, of the Code of Civil Procedure, which provides that the plaintiff is not entitled to a divorce, although adultery is established, “where the plaintiff has also been guilty of adultery, under such circumstances that the defendant would have been entitled, if innocent, to a divorce.” Paul v. Paul, 11 N. Y. St. Rep. 71, and cases there cited. Judgment reversed, and a new trial granted, with costs to abide the final award of costs. All concur.  