Opinion
March 20, 1946.
Present — Taylor, P.J., Dowling, McCurn, Larkin and Love, JJ.
Order reversed on the law, without costs of this appeal to either party, and a new trial granted. Memorandum: While the wife could not have been compelled to testify to her own adultery, yet if she did so voluntarily, her testimony was not incompetent, under section 349 of the Civil Practice Act. If, having received her testimony, in effect a confession of her own adultery, the court believed it, and found in other testimony sufficient corroboration, he could have granted a decree of divorce. (See Rosenzweig v. Rosenzweig, 231 App. Div. 13; Monypeny v. Monypeny, 171 App. Div. 134.) All concur. (The order dismisses plaintiff's complaint in an action for an absolute divorce.)