35 N.Y.S. 556 | N.Y. Sup. Ct. | 1895
I concur in the conclusion arrived at by the referee that the evidence in this case is not sufficient to warrant a finding that the defendant had been guilty of the acts of infidelity charged against him, but I cannot concur in his conclusion that the evidence warrants the finding that the plaintiff had been guilty of the acts charged against her by the defendant. Charges of this kind are only to be established by clear and convincing evidence. They are so serious in their character, and the results so grave, that a court should hesitate before making a finding of guilty except when thoroughly satisfied of the truth of the charge. While I have great reluctance in refusing to concur in a finding of fact upon conflicting evidence, made by a referee of the ability of the one in this case, who has had the witnesses before him; still, after reading and re-reading the testimony in this case, my mind refuses to reach the conclusion that the charge made against the plaintiff is sufficiently established. There is no direct evidence of the commission of the act alleged against her, but only evidence of circumstances which, if no defense had been offered, might be sufficient to warrant an inference of