Kwisty v. Kwisty

Ample evidence is contained in the record to sustain the finding of tile trial court that the defendant committed adultery with the corespondent named. However, the proof relied upon as establishing condonation of the offense falls far short of the requirements which are to be found in the cases (Betz v. Betz, 2 Robt. 694; Merrill v. Merrill, 41 App. Div. 347; Harris v. Harris, 83 App. Div. 123). Under the circumstances the court should not have granted the defendant a judgment of separation against the plaintiff. The judgment appealed from should therefore be reversed, without costs, the counterclaim dismissed and judgment directed in favor of the plaintiff for an absolute divorce.

Peck, P. J., Hlennon, Dore, Van Yoorhis and Shientag, JJ., concur.

Judgment unanimously reversed, without costs, the counterclaim dismissed and judgment directed in favor of plaintiff for an absolute divorce. The findings inconsistent with this determination should be reversed and such new findings made of facts proved on the trial as are necessary to sustain the judgment hereby awarded. Settle order on notice.