Opinion
Argued February 10th, 1937.
Decided April 30th, 1937.
Petitioner sued for divorce on the ground of defendant wife's adultery. This is a fact case; the advisory master saw the witnesses and observed their demeanor while testifying, and he concluded that the charges had been sustained. Decree affirmed.
On appeal from the court of chancery.
Messrs. Stickel Stickel ( Mr. Fred G. Stickel, Jr.), for the petitioner-respondent.
Mr. Samuel Kalisch, Jr., for the intervening defendant-appellant.
Petitioner sued for divorce on the ground of adultery with Edward J. Downer (intervenor) on the night of June 10th, 1935, and habitually over a long period of time. A decree was advised for the petitioner and the intervening defendant appeals.
The defendant was not present at the hearing before the advisory master although represented by counsel who stated that he had been in conference with her on the night before, had spoken to her on the telephone that morning, and that she had promised to attend.
Petitioner proved his charges by a chain of circumstances involving Downer, who denied culpability but admitted acquaintance with the defendant and visits to her home. In particular, as to his movements on June 10th, 1935, he testified that he was at his office in New York until six-fifteen P.M., and thereafter at his home with his wife. Neither his wife nor any of his office force was produced to corroborate him and no explanation was given for their failure to do so.
This is a fact case. The advisory master who saw the witnesses and observed their demeanor while testifying, concluded that the charges had been sustained. We have carefully examined the proofs and concur in the result reached.
The decree is affirmed, with costs.
For affirmance — THE CHIEF-JUSTICE, TRENCHARD, BODINE, DONGES, PERSKIE, HETFIELD, DEAR, WELLS, WOLFSKEIL, RAFFERTY, COLE, JJ. 11.
For reversal — PARKER, LLOYD, CASE, HEHER, JJ. 4.