Opinion
June 3, 1946.
In an action for an absolute divorce, the trial court, after a trial before the court without a jury, dismissed the complaint upon the merits but made provision for the custody of a child of the parties, and for the support and maintenance thereof. From that portion of the judgment, entered upon such decision, which dismissed the complaint, plaintiff appeals. Judgment, insofar as appealed from, reversed on the law and the facts and a new trial granted, with costs to appellant to abide the event. The finding that defendant did not commit adultery on the date charged is contrary to the weight of the credible evidence. It was also prejudicial error for the trial court to exclude the question propounded to defendant on his cross-examination as to whether he was then in love with the alleged corespondent. ( Kay v. Kay, 235 App. Div. 25.) For the purposes of a new trial the finding of fact that defendant did not commit adultery is reversed, and the conclusion of law based thereon that the complaint be dismissed on the merits is disapproved. Lewis, P.J., Carswell, Adel, Aldrich and Nolan, JJ., concur.