
    Robert Karger, Plaintiff, v. Hedwig Karger, Defendant.
    (Supreme Court, New York Special Term,
    January, 1897.)
    1. Divorce — Connivance.
    A divorce will not be granted to a husband where hé has connived at the adultery of his wife by passively permitting it to be carried on when he could have prevented it.
    3. Same — Condonation.
    Nor will a divorce be granted where the plaintiff, with knowledge of defendant’s guilt, has voluntarily cohabited with her. .
    ■3. Same —■ Cohabitation — Presumption of.
    Cohabitation will be presumed from the fact that husband 'and wife continue to live in the same house, eat .at the'same table and reciprocate conjugal kindnesses.
    Action for absolute divorce.
    John J. Brady, for plaintiff.
    August P. Wagener, for defendant.
   Pbyob, J,

Hpon‘ the evidence the adultery of the defendant is an inevitable conclusion. Still, the plaintiff is not entitled to a divorce if the offense was committed by his procurement or with his connivance. Code Civ. Pro., § 1758.

.Suspecting a criminal connection between his wife and one Stein, the plaintiff concerted with the witness Wolf a scheme for detecting the defendant in the act. She was in the habit of visiting Stein at his room in Wolf’s house; and the arrangement was that the plaintiff should go to the house and Wolf “would show it to him.” He went to the house and was so situated that, though himself concealed, he could observe the approach of his wife.. She entered the house and met Stein. Meanwhile Wolf, with plaintiff’s privity, had so disposed the company and fastened the doors as apparently .to assure the defendant of security in the illicit intercourse. From the ambush in which they lay, Wolf, in company with the plaintiff, heard Stein invite the woman to his embraces and saw them go to bed together. Then, after waiting “ two or three minutes,” the husband and witness rushed into the room and surprised the parties in the act. This is the adultery of which I am constrained to find the defendant guilty.

But was not the offense committed with plaintiff’s connivance? Hot only did he permit it to be done, when a look or a word from him would have prevented it; not only did he suffer it to proceed in his presence and delay interruption until he supposed it consummated, but through the agency of Wolf he promoted and facilitated the adultery. The inference is irresistible that the plaintiff was willing that the defendant should commit the act in' order that he might obtain a divorce. Morrison v. Morrison, 136 Mass. 310. “The connivance may be a passive permitting of -the adultery, as well as an active procuring of its commission.” 2 Bish. on Mar. & Div., § 6. “ If the husband receives a caution concerning the conduct of his wife, or if he sees what a reasonable man could not see without alarm, * * * he is called upon" to exercise a peculiar vigilance and care over her; and if he sees what a reasonable man could not permit, and makes no effort to* avert the danger, he must be supposed .to see and mean the consequences. 2 Bish. on Mar. & Div., § 21. '“ This, corrupt "consent will be presumed from passive as well as active encouragement o"f the offense.” . Schouler’s Hus. &' Wife, § 540. “ Mere passive connivance is as much a bar as active conspiracy.” 'Lord Stowell, in Moorsom v. Moorsom, 3 Hagg. Ecc. 105. .“The plaintiff had the power, and it was his duty to prevent the debauchment of his wife.” Gilbert, J., in Bunnell v. Greathead, 49 Barb. 106." “It-would be a dangerous principle to establish that a husband who has suspicions of the infidelity of his, wife shall be allowed to lay a train which may lead her to the commission of adultery, in order that he may take advantage of it to obtain" a divorce.” Pierce v. Pierce, 15 Am. Dec. 210; 3 Pick. 299. I am aware of the decision in Robbins v. Robbins, 140 Mass. 528, but cannot recognize it as an authority. 33 Alb. L. J. 401.

A divorce, again, is not to be allowed “ where the offense charged has been forgiven by the plaintiff;” and “voluntary cohabitation with knowledge of the fact” is proof of condonation. Code, § 1758. The plaintiff denies intercourse with the defendant after knowledge of her guilt; but she affirms such intercourse with particulars of time, place and circumstance. True, the defendant swears falsely as to the fact of adultery; nevertheless, she may speak the truth as to the forgiveness. Dunn v. People, 29 N. Y. 523. I should disbelieve her, however, were she not corroborated by uncontroverted proof. Erom the discovery of the adultery down to the day of trial, the plaintiff and defendant have lived together in the same apartment, occupying connecting sleeping-rooms and eating "at the same table-—-have reciprocated conjugal kindnesses, she cooking for him "and he tending and. caressing her in sickness; he providing for the family and she discharging the household duties. Such relations between the parties, since the adultery, constitute in themselves proof of cohabitation and forgiveness. “ Married persons living in the same house are presumed to have matrimonial intercourse,” unless the contrary fact be shown. "2 Bish, on Mar. & Div., §■ 46., “ Oohabitation will be inferred, nothing appearing to the contrary,. from the fact of the living together of husband and wife.” Burns v. Burns, 60 Ind. 259, 260. TJpon the question of condonation the weight of evidence is, -in my judgment, with the defendant.

The proof of connivance and forgiveness is not to be disregarded becauses the defenses were not pleaded. Smith v. Smith, 4 Paige, 432.

These people, married now nineteen years, have two minor •children, of whom the custody and' control the' father still intrusts to the mother. Thus, by the most emphatic demonstration, he avows that he does not deem her society hurtful to his offspring; as by his continued connection he shows that he does not consider her an unworthy companion for himself. Should she be discarded and cast penniless upon the world, her min would be inevitable and complete. In the interest, therefore, of the parties concerned, and of the state, which cherishes the stability of the marriage relation, I am happy to find legal ground for denying the divorce.

Judgment for defendant, with costs.  