
    Celestino De Marco, Appellant, v. Sabino De Marco, Respondent.
    First Department,
    December 7, 1906.
    Husband and' wife — divorce — recrimination ■—facts, insufficient to ■ warrant denial of judgment for plaintiff.
    When in an action for absolute divorce the defendant recriminates and demands • affirmative judgment, the Special Term should not refuse to, confirm the report of a referee in favor Of the plaintiff when the countercharge of adultery is only shown by the testimony of a. single witness, which bears the stamp of improbability and is categorically denied by the plaintiff. :
    Evidence to. establish the defense of recrimination must be as strong as that required to establish the plaintiff’s cause of action. . ;
    Appeal by the plaintiff, Celestino De Marco, from an order of' the Supreme Court, made- at the New York Special Term andentéred in the. office of the clerk of the county of New York on the 10th day of September, 1906, denying the plaintiff’s motion to confirm the report of a referee. ^ - ¡
    
      Payson Merrill, for the appellant.
   Scott, J.:

The plaintiff sued for an absolute divorce, alleging adultery on the part of the defendant. The -latter answered; denying the adulteries charged against her," and by way of - defense aiiid counterclaim charged the plaintiff with adultery, and demanded k divorce in' her favor. These charges were denied by the reply.. The cause was sent to a referee who, after taking testimony on behalf of each party, reported that the defendant had been guilty of the’adiulteries charged ' against her; and that “ the testimony adduced, -on behalf of -the defendant 'does not sustain the allegatio.ns-.set fortli In her counterclaim to the plaintiff’s complaint, -wherein she alleges that the plaintiff has c.ommitted acts of adultery entitling the -¡defendant .to a deere'e of divorce as against the plaintiff,” and he further reported as a conclusion of law that the plaintiff was entitled to an absolute divorce as prayed for in the complaint. .A motion :to confirm the report and- for an. interlocutory judgment in accordance therewith-was duly made at Special Term upon notice to the defendant’s attorneys, who did not;however, appear or oppose the motion, The justice before whom the motion came on for hearing, upon his own motion, denied it and entered the order from which this appeal is taken. The order contains no statement of the reasons for which the motion was denied, and none are apparent upon the record. The proceedings were regular, the evidence was sufficient to justify the findings of the referee, and the case contains no suggestion or indication of fraud upon the court or of collusion between the parties. The order upon the record, therefore, stands without legal support. The printed papers, however, contain a memorandum by the justice in which he says that “ the proofs warrant the conclusion that plaintiff was guilty of acts of marital infidelity as well as the defendant. Under such circumstances I do not think the report of the referee should be confirmed.” The learned justice speaks of “acts” of infidelity, using the plural form of the verb, from which it may be inferred that the evidence left on his mind the impression that the plaintiff had been guilty of acts of infidelity other than those specifically charged in the answer, for of these' latter no evidence whatever was produced save as - to a single act. If the denial of the motion pro7 ceeded upon this ground it was erroneous, for it is necessary in order that the plaintiff’s adultery shall be successfully interposed as a defense that it should be properly pleaded, and should be supported by no less evidence than would be required to establish the charge if made by the defendant as the basis of an action against the plaintiff for a divorce. (Pollock v. Pollock, 71 N. Y. 137.) The answer charges the defendant with three acts of adultery, one in Kentucky in 1890; one in Arkansas in 1896, and one at 102 Mott street in New York city in 1895. The only evidence offered which tended to support any of these charges was with reference to the act charged as having been committed in Kentucky. The defendant was permitted to offer some evidence respecting an alleged admission by plaintiff that he had been guilty of adultery at 247 Mulberry street in New York city, but it ivas afterwards properly stricken out by the referee, and should never have been admitted at all. The only evidence, therefore, tending to prove any of the specific acts of adultery charged against the plaintiff in the answer was that respecting the alleged adultery in Kentucky in the year 1890, as to which the referee reported that the charge had not been sustained. If the learned justice denied the. motion to confirm the referee’s report because he deemed this finding unwarranted, we must construe his action as equivalent to a finding" that the evidence established the plaintiff’s guilt as to the adultery charged as having‘been committed in Kentucky in 1890. If this be the ground upon which the motion was. denied we still think that its denial was erroneous: The adultery was testified to

by.but a single witness* and .his evidence bears the stamp of improbability upon its face, and is categorically denied by the plaintiff. Certainly'the evidence was not such as would have justified a decree of divorce in favor of the,defendant, a^nd if it was not, it did not suffice to establish a defense to plaintiff’s-action.

The order must be reversed, with ten- dollars costs and disbursements, and the motion granted, and the cause remitted to the Special .Term for entry of an. interlocutory decree.

Patterson, Ingraham, LáüghliN and Clarke, JJ., concurred.

Order ..reversed, with ten dollars costs • and disbursements, and . motion granted, and case remitted to Special Term. Order filed.  