
    Aida L. Davis, Appellant, v. Charles H. Davis, Respondent.
    First Department,
    October 25, 1912.
    Husband and wife — divorce —proof justifying finding of adultery — collusion.
    Action for absolute divorce. The proof taken before a referee showed that the defendant, together with an. unknown woman, had registered at a hotel under a false name, and had been taken together with baggage to the upper portions of the hotel. Evidence examined, and held, that the report of the referee finding the defendant guilty of adultery should have been confirmed, as the action having been defended and the confirmation of the report having been opposed, the parties could not be charged with collusion.
    Appeal by the plaintiff, Aida L. Davis, from an order of the Supreme Court, made at the New York Special Term and. entered in the office of the clerk of the county of New York on the 4th day of May,. 1912, denying the plaintiff’s motion for an interlocutory judgment of divorce upon the report of a referee.
    
      
      W. C. Percy, for the appellant.
    
      Allen C. Bragaw, for the respondent.
   Laughlin, J.:

This is an action for divorce. The plaintiff alleged that on the 12th day of December, 1911, at the Grand Union Hotel, New York, the defendant committed adultery with a woman unknown to her. This allegation was put in issue. The uncontroverted evidence shows that at the time and place specified in the complaint the defendant, accompanied by a young woman not his wife, entered the hotel with one traveling bag, and under an assumed name registered his companion as his wife; that they were assigned to a suite of rooms, for which he paid in advance for the period of one day, and were escorted to the elevator leading to rooms by a bellboy, who had the key and carried the traveling bag; that they entered the elevator, the door of which was then closed; that shortly thereafter the boy returned to the office unaccompanied by either of them and without the traveling bag, and that immediately before going to the Grand Union Hotel they had been to the Hotel Belmont across the avenue, where they dined together and where the defendant had registered the woman and himself under another fictitious name, and had had some discussion with the room clerk, after which they left.

On this evidence the referee found in favor of the pla.int.iff The learned judge presiding at Special Term was of opinion that the evidence was insufficient to warrant a decree and denied the motion to confirm the report.

If the action had not been defended, it may well be that the inference of criminal intimacy would not be warranted by this evidence, for the parties might by collusion thus lay thé foundation for divorce by misleading circumstantial evidence; bnt the action was defended and the confirmation of the report of the referee was opposed. The only reasonable theory on which it could be said that the defendant was not guilty of criminal intimacy with the woman accompanying him on the occasion in question is that he was at the time acting in collusion with his: wife to afford her an apparent basis for the action without having committed the act of infidelity on which only the law authorizes a divorce. In- the ¡absence of any evidence pointing in that direction, it is not a reasonable inference that he was then in collusion with his wife to enable her to obtain a divorce and has since changed his mind, for, if that were so, he woiild doubtless have taken the stand in his own behalf, which he did not do. The inference is irresistible, therefore, that he registered-and hired the suite of rooms for the purpose of having intimate relations with the woman accompanying him, and all of the circumstances point to the fact that she must have known that such was his purpose, and it is fairly to be inferred that they went to the suite of rooms to which they were assigned and consummated their mutual desire.

We are of opinion, therefore, that the report of the referee should have been confirmed. It follows that the order should be reversed, with ten dollars costs and disbursements, and interlocutory judgment of divorce entered, with costs of the action.

Ingraham, P. J., McLaughlin, Clarice and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and judgment ordered as directed in opinion.  