| NY | Mar 15, 1867
By the Court.
[After stating the facts.] —The findings of the referee are fully warranted by the evidence, of specific acts of cruelty and inhuman treatment, and of the circumstances under which the plaintiff continued to cohabit with the defendant after the last act of cruelty proved. Such continuance is not, in this case, as it would have been in an action for diyorce on the ground of adultery, conclusive of the fact of condonation. In that case the statute makes it so, but not in this. 3 R. 8.145, § 42; Johnson v. Johnson, 4 Paige, 460; Same v. Same, 14 Wend. 637; Whispell v. Whispell, 4 Barb. 217; 2 R. S. 147. As the case stands here, therefore, the conclusion of the referee that the plaintiff is entitled to judgment is unimpeachable.
[Remarks as to abandoned exceptions are omitted here.]
The judgment appealed from is right and should be affirmed with costs, and an award of ten per cent, upon the amount of the judgment as damages for the delay produced by the appeal.
All the judges concurred.
Judgment affirmed, with costs, and ten per cent, damages.