
    Frank Griffin, Plaintiff, v. Barbara Griffin, Defendant.
    
      Divorce — adultery—counterclaim.
    When, in an action for divorce on the ground of adultery, the defendant alleges, by way of counterclaim, adultery on the part of the plaintiff, and proves it, it is error for the referee by whom the case is tried, to say nothing in his report in regard to the testimony on that question, and to direct judgment for the plaintiff, upon findings establishing the guilt of the defendant
    Such a judgment is in violation of paragraph 4 of section 1758 of the Code of Civil Procedure, which provides that a 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.”
    Submission, by stipulation, of tbe question of tbe error of tbe referee in not finding, in bis report, as to tbe adultery of tbe plaintiff, under tbe pleadings in tbe action, and tbe evidence introduced at tbe bearing.
    Tbe action was brought for divorce, on a complaint alleging tbe commission of adultery by tbe defendant. Tbe defendant answered, denying tbe allegation of tbe complaint as to adultery, and alleging, by way of counterclaim, acts of adultery on tbe part of tbe plaintiff. No reply was served, but tbe action having been referred, tbe plaintiff moved, before tbe referee, to be allowed to serve a reply. Tbe referee refused tbe application, on the grounds that tbe time in which such a reply was required to be served bad long passed, and that be bad no power to grant tbe order asked.
    Evidence was given by each party before tbe referee, tending to prove the commission of adultery by tbe other. Tbe referee made a report, finding, as facts, tbe commission of acts of adultery by tbe defendant, making no reference to the testimony as to tbe commission of acts of adultery by tbe plaintiff, and finding, as conclusions of law, that a divorce should be decreed in favor of tbe plaintiff dissolving the marriage for the adultery committed by the defendant, and that tbe plaintiff should have tbe care and custody of the children of tbe marriage. Tbe report directed that judgment be entered accordingly.
    
      
      Anson 8. MePfab, for the plaintiff.
    
      Lossy c& Mcureey, for the defendant.
   Macomber, 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 of section 1158 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. Repr. 71, and cases there cited.)

The judgment must be reversed, and a new trial granted, with costs to abide the final award of costs.

Dwight, P. J., Lewis and Haight, JJ., concurred.

Judgment reversed, and new trial granted, with costs to the defendant to abide the event.  