
    Katherine W. Cullen, Respondent, v. James H. Cullen, Appellant.
    First Department,
    May 4, 1923.
    Husband and wife — separation — defense and counterclaim of cruel and inhuman treatment and of adultery by plaintiff —• counterclaim for separation — finding that plaintiff was not guilty of adultery against evidence.
    In an action for separation in which the defendant alleged, both as a defense and a counterclaim, cruel and inhuman treatment on the part of the plaintiff, and also the adultery of the plaintiff committed, both prior and subsequent to the commoheement of the action, and asked for a separation only, the finding by the trial court that the plaintiff had not committed adultery, is against the weight of the evidence and the judgment is reversed and a new trial granted.
    Clarke, P. J., dissents.
    Appeal by the defendant, James H. Cullen, from a judgment of the Supreme Court in favor of the plaintiff in an action for separation, entered in the office of the clerk of the county of New York on the 10th day of April, 1922, upon the decision of the court rendered after a trial at the New York Special Term, and also from an order entered in said clerk’s office on the 11th day of March, 1922, denying defendant’s motion to amend his answer so as to include a demand for absolute divorce.
    
      Louis E. Felix [E. Crosby Kindleberger of counsel], for the appellant.
    
      Louis Sturcke, for the respondent.
   Smith, J.:

The defendant in his answer set up cruel and inhuman treatment on the part of the plaintiff, and also the adultery of the plaintiff committed, as it is claimed, both prior and subsequent to the commencement of the action. The facts set up in the answer were alleged both as a defense and a counterclaim. The relief asked was for a separation in favor of the defendant as against the plaintiff. After the proof was in and before the decision was made, the defendant asked leave to amend his answer by making his counterclaim a claim for an absolute divorce, and not merely one for a separation. This was denied by the trial justice, and from this order, also, an appeal has been taken.

The learned court below found that the plaintiff had not been guilty of adultery as charged by the defendant. We are not satisfied with the conclusion which he reached upon this question of fact. The proof of adultery is ordinarily made by circumstantial evidence and the circumstances shown by the evidence were so many, the opportunities so frequent, and the evidences of affection openly shown so positive, without going into the details which it would not be profitable to discuss in an opinion, that we think the decision cannot be upheld.

We have reached the conclusion, giving to the plaintiff all the presumption that attaches by reason of the trial justice having had the witnesses, before him and heard them testify, that the finding of the court was against the weight of evidence, and that the ends of justice require a new trial.

The judgment should, therefore, be reversed upon the law and the facts, and the finding that the plaintiff had not been guilty of adultery reversed and a new trial ordered. The defendant may make his application to the Special Term to amend his answer by asking for an absolute divorce in case he should be so advised. All the issues could then be tried and the matter finally settled in one action.

Page, Merrell and Finch, JJ., concur; Clarke, P. J., dissents.

Judgment reversed and new trial ordered. Settle order on notice.  