| N.Y. App. Div. | Dec 15, 1917
Judgment affirmed, without costs, upon the ground that the evidence of unwifely conduct on defendant’s part, outside of direct proof of adultery charged in the complaint, was in our judgment competent upon the trial of the cause of action for separation, notwithstanding the verdict in defendant’s favor upon the trial of the framed issues of adultery under the cause of action for divorce, and upon the further ground that at folio 353 of the record the defendant in court, by her counsel, admitted, in effect, that all the evidence against her, except that as to the actual commission of adultery, was true. We, however, reverse the finding of fact that plaintiff did not have sexual intercourse with the defendant after November, 1915, and that he was not the father of the child born to defendant on October 26, 1916, and also the conclusion of law to the same effect, because we consider that the verdict of the jury was conclusive in her favor upon those issues or questions. Jenks, P. J., Thomas, Mills, Putnam and Blackmar, JJ., concurred. Order to be settled before Mr. Justice Mills.