
    James Francis O’Hara, Appellant, v. Irene Josephine O’Hara, Respondent.
    Second Department,
    January 21, 1910.
    Husband and wife — divorce — evidence — testimony of wife.
    A wife sued for divorce is not confined to a mere denial of adultery, but may; testify to facts and circumstances tending to explain her situation and to show a conspiracy against her.
    Report of a referee in a divorce action examined, and held, that findings that the first alleged act of adultery was condoned, and that the second alleged act of adultery, was committed with the consent, connivance and procurement 'of tire plaintiff were sustained, by the evidence.
    Appeal by the plaintiff, James Francis O’Hara, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 17tli day of March, 1909, upon the report of a referee dismissing the complaint in an action for an absolute divorce. '
    
      Peter P. Smith [ Joseph J. Reiher with him on the brief], for the appellant. . ■ .
    
      Charles M. Davenport [Harry E. Lewis with him on the brief], for the respondent.
   Woodward, J.:

The amended complaint in this action alleges adultery on the part of the defendant with one Philip Kunzinger.in the months of August, September, October, November and December, 1905, and in the year 1906, and another act of adultery with a person known to the plaintiff as W. Healy, at the Parkway Hotel, Boulevard, Coney Island, Brooklyn, on the 12th day of August, 1908. The answer denied both of the allegations of adultery, and as to the first alleged that it had been forgiven by the plaintiff, both expressly and by cohabitation after knowledge of the facts, and as to the second offense it was alleged that if committed at all it was so committed with the consent, connivance, privity and procurement of the plaintiff. The case was sent to a referee to hear, try and determine, and after an. exhaustive trial on the merits the learned referee dismissed the complaint upon the ground that the act of adultery charged against the defendant as of August, 1908, was brought about through the connivance of the plaintiff, while the other acts of adultery had been condoned after full knowledge of the facts.

A careful following of the evidence in this case discloses no reason for interfering with the judgment. The conclusion is irresistibly forced upon us that the plaintiff in this action deliberately conspired with his private detectives in bringing about a situation which, apart from the connivance, must be held to establish the fact of adultery. It is not worth while to fill up the reports with details of this conspiracy; it is enough that the evidence warranted the referee in reaching the conclusion that the complaint should- be dismissed, and that no reversible errors appear in the case. It is urged that it was error for the learned referee to permit the defendant to testify to facts in relation to the connivance alleged in her answer, under the limitations imposed by section 831 of the Code of Civil Procedure; but the cases of Stevens v. Stevens (54 Hun, 490) and Huntley v. Huntley (73 id. 261) distinctly hold that the defendant is not thus limited by the Code provision, and the reasoning on which these decisions rest leaves no doubt of the legislative intent. To say that a woman accused of adultery is confined to a mere denial of the act, and that she is forbidden to tell of facts and circumstances tending to explain her situation, and tending to show a conspiracy to thus place her, is to convict the Legislature of a gross injustice.

The judgment appealed from should be affirmed, with costs.

Hirschberg, P. J., Burr and Bich, JJ., concurred; Thomas, J., not sitting.

Judgment affirmed, with costs.  