Opinion
May, 1935.
Plaintiff sued for a separation. The amended answer charged plaintiff with adultery. Upon the trial the defendant has secured an interlocutory decree of divorce. The testimony shows no indecent act, gesture, word or look, or of undue familiarity between the plaintiff and the alleged correspondent. There is no proof of a kiss or an embrace, or endearment of any kind, or of a surprise in an equivocal situation, and while the mode of life of these persons furnished opportunity for immoral conduct, this is not enough. A careful reading of all the evidence shows it capable of two interpretations. It is as capable of an interpretation favorable to the plaintiff as against her. ( Pollock v. Pollock, 71 N.Y. 137.) Judgment reversed on the law and facts and the counterclaim in defendant's amended answer dismissed, with costs to the appellant. The court reverses findings of fact numbered 4, 5, 6, 7 and 9 and disapproves the conclusions of law. Hill, P.J., Rhodes, McNamee, Crapser and Bliss, JJ., concur.