Opinion
May 25, 1971
Judgment, Supreme Court, New York County, entered on November 10, 1970, unanimously modified, on the law and the facts, to strike therefrom the first and second decretal paragraphs thereof, which, respectively, awarded plaintiff-respondent wife a divorce from defendant-appellant husband, and alimony thereunder, and to substitute therefor directions that plaintiff wife is not entitled to a divorce or alimony by reason of her own adultery, and to add thereto a direction of severance of those causes in the complaint seeking separation, and otherwise affirmed, without costs and without disbursements. Judgment, Supreme Court, New York County, entered on November 9, 1970, unanimously modified, on the law and the facts, to amend the first decretal paragraph thereof, which dismissed the complaint of plaintiff-appellant husband for divorce against defendant-respondent wife to specify that plaintiff husband is not entitled to a divorce by reason of his own adultery, and to strike therefrom the second decretal paragraph thereof whereby costs of the action are awarded to defendant-respondent wife, and otherwise affirmed, without costs and without disbursements. Appeal from order, Supreme Court, New York County, entered on March 19, 1971, denying motion of plaintiff-appellant wife for sequestration of the assets of defendant-respondent husband, dismissed as academic in view of the disposition of Appeals Nos. 3722 and 3723 decided simultaneously herewith, without costs and without disbursements. Each party, husband, wife, in separate suits, sought divorce from the other, alleging adultery. By stipulation, the wife's additional causes for separation were "held in abeyance," and the nonjury trials were consolidated; they resulted in findings by the trial court, expressed in a filed decision, that the adultery of the husband had been proven, while that of the wife had not because "the testimony of the wife's witnesses is more believable and should be given more credence than the husband's witnesses." We agree that the adultery of the husband was amply established, but we find faulty the trial court's estimate of comparative quality; if anything, the appraisal should run the other way. Evidence against the husband was furnished largely by private detectives — professional witnesses — who were sufficiently supported by other circumstances to be entirely credible. Evidence against the wife was furnished by the corespondent himself, strongly corroborated by disinterested witnesses and, even more damning, by the wife herself. The husband's answer interposed a specific defense of recrimination; while the wife's answer contained no such pleading, her complaint in her own action, the two trials having been stipulated into one, is deemed to be a similar pleading. There is no doubt that recrimination is established. The mere fact that the issues were not presented in complaint and counterclaim, but by two separate sets of pleadings, should not deter us from proper disposition of the case. We now do what the trial court should have done (CPLR 5522; Society of N.Y. Hosp. v. Burstein, 22 A.D.2d 768), and we make appropriate substitute findings, and correct both judgments accordingly, denying divorce to both guilty parties, stripping the wife of the award of alimony, and leaving intact the provisions for custody, support, and visitation of the child. We also affirm the award of counsel fee, but specify that it shall cover all services rendered the wife in this unfortunate marital imbroglio.
Concur — Capozzoli, J.P., Markewich, Nunez, McNally and Macken, JJ.