93 N.Y.S. 159 | N.Y. App. Div. | 1905
After framing an issue concerning the commission of adultery at a particular, specified time and place, the court, following the language of another allegation of the complaint, framed an issue as to whether the defendant committed adultery with the same co-respondent “at divers times between the 1st day of January, 1904, and the date of the commencement of this action, at divers places in the city of New York and elsewhere.” The appeal involves the propriety of framing this issue. The action was
The order also frames as issues to be tried by the jury the questions. as to whether the adultery was committed without the consent, connivance, or procurement of the plaintiff, whether five years •elapsed since the plaintiff discovered the facts, and whether she has voluntarily cohabited with the defendant since such discovery. 'These are issues to be tried by the court, if necessary, after the rendition of the verdict upon the issue of adultery. We disapprove of the practice of submitting these issues to a jury, since there is no •authority therefor.
It follows; therefore, that the ordér should be modified by striking out the words “and elsewhere,” in the second issue as framed, and by striking out the third, fourth, and fifth issues, and, as thus modified. affirmed, with $10 costs and disbursements. All concur.