
    (29 Misc. Rep. 557.)
    ISAACS v. ISAACS.
    (Supreme Court, Special Term, New York County.
    November, 1899.)
    Divorce—Adultery—Sufficiency op Evidence.
    In an action for divorce there was evidence that defendant left her home the same day that one B. left his, and that they had been friendly for some time. On one or two occasions plaintiff’s employé, calling at plaintiff’s apartments, found the door locked. It was opened in two or three minutes, and defendant, fully dressed, was seen in the apartment, with a man, who on one occasion had his coat off. It did not appear whether the apartment was a room or flat, nor whether it was warm or cold. There was no evidence that the man was B., or that defendant and B. left home together. Eeld insufficient to show adultery.
    Action by Morris Isaacs against Bertha Isaacs for divorce. No appearance- for defendant. Order entered restoring the case to the calendar.
    N. S. Levy, for plaintiff.
   GILDERSLEEVE, J.

The action is for an absolute divorce, instituted by the husband. The defendant was served with the summons by publication, and has failed to appear in the action. The evidence of the adultery is that defendant left her home on the same day that one Besser left his home; that she and Besser had been on friendly terms for some time previous; that on one or two occasions an employé of plaintiff had called at the plaintiff’s apartment, and found the door locked; that, two or three minutes after knocking, thé door was opened, and defendant was seen in the apartment, with a man, who, on one occasion, was without a coat, but that defendant was fully dressed. Whether the apartment was a flat or a mere room does not appear, nor whether it was warm or cold. There is nothing to indicate that the man was Besser, nor that he was in plaintiff’s apartment for improper purposes. The mere fact that defendant left her home on tire same day that Besser left his home does not prove that they went together. If the plaintiff’s apartment was a flat, it was very natural that the outer door should be locked, and does not necessarily indicate a criminal purpose on the part of the defendant. So far as appears from the testimony, the man may have gone to plaintiff’s apartment with perfectly proper motives. I think the plaintiff should be required to furnish further evidence to substantiate.his charge of adultery. Abandonment does not necessarily imply adultery. An order may be entered restoring the case to the calendar, and setting it down for trial on the first Wednesday of December.

Ordered accordingly.  