
    James M. Armstrong, Plaintiff, v. Bozena Armstrong, Defendant.
    (Supreme Court, New York Special Term,
    November, 1904.)
    Divorce — Denied where the husband connives at the adultery—A separation granted to the wife because of cruel treatment.
    In an action brought by a husband.to secure a divorce from his wife and in which the wife sought a judgment of separation, the jury found that between March 1, 1903, and January 8, .1904, the wife at various times committed adultery with the corespondent; that in January, 1901, the husband, by procurement and connivance, induced the corespondent to attempt to commit adultery with the defendant; that since their marriage the plaintiff has treated the defendant in a cruel and inhuman manner, and that the plaintiff for the last three years has wilfully abandoned the defendant without cause or justification and has contributed to her support during that period the sum of $20 per month.
    
      Held that, in the absence of evidence to the contrary, it would be assumed that, when the plaintiff induced the corespondent to attempt to commit adultery with the defendant, he thereby put in operation the acts of the corespondent which finally resulted in the attempt becoming successful;
    That consequently the plaintiff was not entitled to a decree of divorce, but that the defendant was entitled to a judgment of separation.
    Action for divorce.
    Wentworth, Lowenstein & Stern, for plaintiff.
    Gillette & Clark, for defendant.
   Blanchard, J.

In this action the plaintiff, the husband, seeks a divorce, and the defendant, the wife, a separation. The findings of the jury establish the facts as follows: That between March 1, 1903, and January 8, 1904, the defendant, the wife, at various times, committed adultery with the corespondent; that in January, 1901, the plaintiff, the husband, by procurement and connivance induced the corespondent to attempt to commit adultery with the defendant; that since their marriage the plaintiff has treated the defendant in a cruel and inhuman manner and that the plaintiff for the past three years has willfully abandoned the defendant without cause or justification and has contributed to her' support during that period the sum of twenty dollars per month. In the absence of any evidence to the contrary it will be assumed that when the plaintiff, by his connivance and procurement, induced the corespondent to attempt to commit adultery with the defendant, he thereby put into" operation the acts of the corespondent, which finally resulted in the attempt becoming successful, causing the act of adultery to be committed by the wife. The facts in this case are sufficient in my judgment to war-Taut the conclusion that the offense of adultery was committed by the procurement or with the connivance of the plaintiff, within the meaning of section 1758 of the Code of Civil Procedure. In this case the argument that a husband may, with an honest intent, induce another by connivance and procurement to attempt to commit adultery with his wife is without force, because the attempt here resulted in the actual commission of the act of adultery. A divorce will, therefore, be refused to the plaintiff, but the defendant may have a decree of separation.

Ordered accordingly.  