Opinion
October, 1927.
The parties having stipulated in writing that this case may be decided by a court of four justices, the decision is as follows: Order denying motion to confirm referee's report reversed upon the law and the facts, with ten dollars costs and disbursements, and motion to confirm granted, with ten dollars costs. The learned Special Term based its decision upon the theory that the testimony of the detectives was insufficient, in and of itself, to support the conclusion reached by the referee, but we are of the opinion that upon this record there was sufficient corroboration to justify the referee's finding. This corroboration was given by the landlady of the apartment house in which the defendant resided, as well as by the defendant and the corespondent themselves. The reasons advanced by the latter two for the presence of the corespondent in defendant's apartment were rejected by the referee, as he was clearly entitled to do upon the testimony. He had the advantage of seeing the witnesses, and was, therefore, in the position to credit or discredit their testimony. We point out, although unnecessary to this decision, that it is not a hard and fast rule that a decree of divorce cannot be predicated upon the unsupported testimony of private detectives. The latest view of the Court of Appeals, as evidenced in Yates v. Yates ( 211 N.Y. 163) and McKeon v. Van Slyck (223 id. 392, 398), is that such theory is not a rule of evidence but is one for the guidance of the judicial conscience, and that while justices and jurors are justified in looking with suspicion upon such evidence, the Court of Appeals "has not determined as matter of law that such evidence could not be considered," and that "when a trial judge put before a jury as a rule of law this caution designed to guide the judicial conscience, we pronounced the ruling error." Manning, Young, Kapper and Lazansky, JJ., concur.