
    Morris Isaacs, Plaintiff, v. Bertha Isaacs, Defendant.
    (Supreme Court, New York Special Term,
    November, 1899.)
    Divorce — Proof of adultery — Abandonment.
    Proof of adultery must be clear. An abandonment of the plaintiff does not necessarily substantiate such a charge against the defendant.
    ..Actioh for an absolute divorce.
    
      N. S. Levy, for plaintiff.
    No appearence for defendant.
   OmDEBSLEEVE, 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 employee of plaintiff "had called at the plaintiff’s apartment, and found the door locked; that, two or three minutes after knocking, the 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 the 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 calandar and setting it down for trial on the first Wednesday of December.

Ordered accordingly.  