Opinion
October 10, 1949.
Appeal from an interlocutory judgment of divorce upon the grounds of adultery. Examination of this record and of all the evidence adduced upon the trial shows that it is as capable of an interpretation as favorable to the appellant as one indicating his guilt. Full credence to the evidence most favorable to the respondent establishes nothing more than opportunity. It is entirely lacking in any proof whatever indicating illicit intimacy between the appellant and the alleged correspondent or of conduct showing either desire or purpose to commit adultery. Such proof is insufficient to sustain the finding of adultery. ( Pollock v. Pollock, 71 N.Y. 137; Graham v. Graham, 157 App. Div. 52; Cottrell v. Cottrell, 165 App. Div. 693; Rolfe v. Rolfe, 244 App. Div. 863; Vrooman v. Vrooman, 270 App. Div. 784.) Judgment reversed on the law and the facts, without costs, and the complaint dismissed on the law, without costs. This court reverses findings of fact numbered 4 and 5 and disapproves the conclusions of law. Nolan, P.J., Carswell, Johnston, Sneed and MacCrate, JJ., concur.