
    SMITH v. SMITH.
    Supreme Court, General Term, Third Department.
    September 10, 1895.)
    Divorce—Evidence.
    Where the only evidence of the adultery charged is of circumstances which, if no defenses were made, might be sufficient, but a defense is made, and the acts charged are denied, and the denial is supported by testimony of witnesses as credible as those of the adverse party, the finding of the referee that the charge is true cannot be sustained.
    Appeal from judgment on report of referee.
    Action by Sarah Gr. Smith against John B. Smith for divorce. There was a judgment in favor of defendant, and plaintiff appeals. Affirmed in part and reversed in part.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    Charles F. Doyle, for appellant.
    William H. McCall, for respondent.
   HERRICK, J.

I concur in the conclusion arrived at by the referee that the evidence in this case is not sufficient to warrant a finding that the defendant had been guilty of the acts of infidelity charged against him, but I cannot concur in his conclusion that the evidence warrants the finding that the plaintiff had been guilty of the acts charged against her by the defendant. Charges of this kind are only to be established by clear and convincing evidence. They are so serious in their character, and the results so grave, that a court should hesitate before making a finding of guilty except when thoroughly satisfied of the truth of the charge. While I have great reluctance in refusing to concur in a finding of fact upon conflicting evidence, made by a referee of the ability of the one in this case, who has had the witnesses before him; still, after reading and re-reading the testimony in this case, my mind refuses to reach the conclusion that the charge made against the plaintiff is sufficiently established. There is no direct evidence of the commission of the act alleged against her, but only evidence of circumstances which, if no defense had been offered, might be sufficient to warrant an inference of guilty conduct; but not only is a defense made in this case by the plaintiff, and the acts charged against her denied, but the evidence to establish the facts from which the unfavorable inferences are to be drawn is controverted by witnesses on behalf of the plaintiff, who seem to be at least entitled to credit equal to those sworn on behalf of the defendant. Without reviewing the testimony at length it is sufficient to say that I cannot concur in the view of this branch of the case taken by the referee, and that, therefore, I think the decision arrived at by him in refusing to allow a judgment and decree in favor of the plaintiff and against the defendant should be sustained, and that portion of his decision wherein a judgment and decree are allowed in favor of the defendant and against the plaintiff should be reversed, without costs or disbursements of this appeal to either party. All concur.  