106 N.Y.S. 608 | N.Y. Sup. Ct. | 1907
The plaintiff, the husband, brought this action to obtain an absolute divorce from his wife, the defendant, and the issues raised by the pleadings were whether the adultery was'committed as alleged in the complaint and whether the plaintiff had condoned the fault. Upon the consent of the parties the issues were referred to a referee to hear and determine, pursuant to sections 1228 and 1229 of the Code of Civil Procedure, and the referee has made his report, wherein he- finds that the adultery was committed. ¡No evidence was offered, as appears from the record, upon the question of condonation, and the referee’s report contains no finding upon the subject, but notwithstanding the finding of the fact of adultery, and of the jurisdictional fact of the marriage of the parties, the referee has found in the form of conclusions of law that the complaint should be dismissed upon the ground that there was collusion between the parties for the purpose of procuring a decree of .divorce, the recommendation for a dismissal of the complaint being based in turn upon a finding of collusion as a fact. Upon an earlier motion, instituted by the defendant for judgment for the dismissal of the complaint in accordance with the recommendation of the referee, I expressed my view to be that the referee’s finding of collusion was advisory merely, that it was not supported by the proof before him, and that so far as the issues were referred to him for determination his finding upon those issues operated to entitle the plaintiff to a decree of divorce. Bowe v. Bowe, N. Y. L. J., June 11, 1907, p. 1073. The present application on behalf of the plaintiff for an interlocutory decree of divorce follows my determination of the defendant’s motion. It is • insisted for the defendant
Motion granted.