Filocco v. Filocco , 32 N.Y.S.2d 552 ( 1942 )

Townley, J.

This is an action for absolute divorce brought by the plaintiff husband against his wife. The wife has defaulted. If there were any reason for questioning the bona fides of the action it would have been established by the admission in evidence of defendant’s letter stating that she was deserting her husband without any intention of returning. The adultery was conclusively proved by the testimony of a friend *of both the plaintiff and the defendant who found the defendant in a position which could lead to no other conclusion. There was no reason for disbelieving the witness’ testimony.

The official referee declined to make the findings necessary to grant a divorce on the theory that there must be more than one witness to an adultery. Such is not the law. (See Yates v. Yates, 211 N. Y. 163, and Braun v. Braun, 245 App. Div. 194.)

The order should be reversed, the motion granted and an interlocutory decree of divorce awarded in favor of the plaintiff against the defendant.

Martin, P. J., O’Malley, Glennon and Untermyer, JJ., concur.

Order unanimously reversed and motion granted, and an interlocutory decree of divorce awarded in favor of the plaintiff against the defendant. Settle order on notice.