Hartman v. Hartman

This action was brought to obtain a divorce on the ground of adultery. The answer denied the charges and set up adultery on the part of the plaintiff. To this a reply was served containing a general denial under *849oath. A_ reference was ordered and the case was brought to trial. The referee decided in favor of the defendant, whereupon the appellant’s counsel duly served and filed objections and exceptions to the report, and on a motion to confirm the report, the learned judge presiding, impressed with the erroneous conclusions at which the referee had arrived, refused to confirm the report, and from the order made upon that decision this appeal is taken.

It is not deemed necessary to discuss with any detail the testimony which was given before the referee. It is sufficient to say that an examination of the record leaves a most decided impression that there is a preponderance of disinterested evidence against the findings of the referee by which he declares that the defendant did not commit adultery. The same view presents itself upon consideration of the evidence with regard to the charge of adultery made against the plaintiff. The al.eged adulterer denies positively under oath the charge of his intimacy with the plaintiff, and the adverse testimony is not disinterested, and does not seem to be at all reliable.

For these reasons thus generally stated we think the order appealed from was properly made, and should be affirmed with ten dollars costs and disbursements.

Bartlett and Daniels, JJ., concur.