Griffin v. Griffin

New York Supreme Court

Griffin v. Griffin

23 N.Y.S. 1070, 77 N.Y. Sup. Ct. 73, 53 N.Y. St. Rep. 437, 70 Hun 73

DecidedJune 23, 1893

StatusPublished

This text of 23 N.Y.S. 1070 (Griffin v. Griffin) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Griffin v. Griffin, 23 N.Y.S. 1070, 77 N.Y. Sup. Ct. 73, 53 N.Y. St. Rep. 437, 70 Hun 73 (N.Y. Super. Ct. 1893).

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Opinion

MACOMBEE, J.

The judgment entered upon the report of the referee herein should be reversed, and a new trial granted. The defendant, in her answer, alleged the guilt of the plaintiff, thus putting the question of the plaintiff’s guilt into the controversy. Evidence on the trial was adduced to prove, and did prove without doubt, the guilt of the plaintiff; but in regard to this portion of the testimony the referee says nothing in his report, but finds that the decree of divorce should be found against the defendant and in favor of the plaintiff, without regard to the testimony adduced by the defendant upon that branch of her case opened up by the counterclaim, and also, to that extent, in violation of paragraph 4, § 1758, of the Code of Civil Procedure, which provides that the plaintiff is not entitled to a divorce, although adultery is established, “where the plaintiff has also been guilty of adultery, under such circumstances that the defendant would have been entitled, if innocent, to a divorce.” Paul v. Paul, 11 N. Y. St. Rep. 71, and cases there cited. Judgment reversed, and a new trial granted, with costs to abide the final award of costs. All concur.

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MACOMBEE, J.

The judgment entered upon the report of the referee herein should be reversed, and a new trial granted. The defendant, in her answer, alleged the guilt of the plaintiff, thus putting the question of the plaintiff’s guilt into the controversy. Evidence on the trial was adduced to prove, and did prove without doubt, the guilt of the plaintiff; but in regard to this portion of the testimony the referee says nothing in his report, but finds that the decree of divorce should be found against the defendant and in favor of the plaintiff, without regard to the testimony adduced by the defendant upon that branch of her case opened up by the counterclaim, and also, to that extent, in violation of paragraph 4, § 1758, of the Code of Civil Procedure, which provides that the plaintiff is not entitled to a divorce, although adultery is established, “where the plaintiff has also been guilty of adultery, under such circumstances that the defendant would have been entitled, if innocent, to a divorce.” Paul v. Paul, 11 N. Y. St. Rep. 71, and cases there cited. Judgment reversed, and a new trial granted, with costs to abide the final award of costs. All concur.

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Bluebook (online)

23 N.Y.S. 1070, 77 N.Y. Sup. Ct. 73, 53 N.Y. St. Rep. 437, 70 Hun 73, Counsel Stack Legal Research, https://law.counselstack.com/opinion/griffin-v-griffin-nysupct-1893.