Opinion
Submitted February term, 1927.
Decided June 23d 1927.
On appeal from a decree of the court of chancery advised by Vice-Chancellor Lewis.
Mr. Philip J. Schotland, for the appellant.
Messrs. Feder Rinzler, for the respondent.
The petitioner-respondent filed his petition for a divorce from the defendant-appellant, in the court below, in which petition he alleged that the defendant, on the 24th day of May, 1924, and on other days in the said month of May, 1924, committed adultery with a person unknown to the petitioner, in the city of Newark, county of Essex and State of New Jersey. To this petition the defendant filed an answer of general denial.
The matter came on for a hearing before Vice-Chancellor Lewis, who found the charge of adultery, made by the petitioner, in his petition, against his wife, established by the testimony adduced in the cause. There was a conflict in the testimony given by the witnesses, but that is a circumstance not unusual in this class of cases. Thus a careful reading of the testimony makes it manifest that the prime question of the controversy which the vice-chancellor was called upon to decide, depended largely on the credibility of the witnesses who gave their testimony as to what they said they observed took place in the automobile between the defendant and her alleged paramour. The question of credibility was pre-eminently one for the vice-chancellor to decide, for he was in a position to observe the demeanor of the witnesses testifying before him, and had the opportunity of taking note of the manner in which they gave their testimony, of their candor and desire to tell the truth. There was testimony, if true, warranting the vice-chancellor in finding that the charge of adultery against the wife had been established. We cannot, therefore, say that the result reached by the vice-chancellor was not warranted by the evidence.
For this reason the decree is affirmed.
For affirmance — THE CHIEF-JUSTICE, TRENCHARD, KALISCH, BLACK, CAMPBELL, WHITE, VAN BUSKIRK, McGLENNON, HETFIELD, DEAR, JJ. 10.
For reversal — PARKER, LLOYD, KAYS, JJ. 3.