Price v. Price , 9 Abb. Pr. 291 ( 1871 )

Ingraham, P. J.^* (orally).

A divorce suit is different from any other legal proceeding. The court cannot direct a judgment of divorce upon the consent of parties, and this court will not at general term affirm a judgment entered on a report which only finds upon the adultery of one party to the action, although, there are charges of recrimination made against the other, and evidence was offered on the trial in support of them. The statute (2 Rev. Stat., p. 145, § 42, subd. 4) provides that the court shall deny a divorce, when it shall be proved that the complainant has also been guilty of adultery, under such circumstances as would have entitled the defendant, if innocent, to a divorce. Where an issue has been made on the criminality of the plaintiff as well as of the defendant, it is the duty of the referee to find upon both issues.

The report must be taken back to the referee, with instructions to find upon the issues raised as to the plaintiff’s adultery, not passed upon in the present report.

* Present, Ingraham, P. J., and Barnard and Cardozo, JJ.