After reading and re-reading the testimony in this case, I find it impossible to agree with the conclusion of the learned trial judge that the verdict of the jury, which acquitted the defendant of the charge of adultery, was against the weight of evidence. That' her guilt was a natural inference from the circumstances narrated by some of the witnesses must be conceded ; but it seems to me that the statements of these witnesses might well be discredited by the jury in view of their admitted character as amateur detectives. The whole tone and tenor of the fair and impartial charge in which the issues were submitted to the jury for their determination must be regarded as convincing evidence that the judge deemed the *454proof at that time capable of supporting a verdict either way. Had he then thought otherwise, it is hardly possible that some stronger indication of his views should not be discoverable in his reference to the facts than is disclosed by the language of the charge.
I think he was clearly right in holding that the answers to the questions of fact depended upon the estimate to be formed of the truthfulness of the plaintiff’s witnesses; and this matter was one wholly for the determination of the jury. In a case of this character, where an accused wife has been exonerated by a jury from a charge of adultery^ we have not been referred to any previous instance in which the court has set aside the finding; and, though the power to do so doubtless exists, I do not think its exercise should be sanctioned upon this record or except under circumstances which demonstrate that the verdict is the result of sympathy or of some other improper influence, or has been reached in flagrant disregard of clear and convincing proof furnished by the uncontradicted testimony of disinterested witnesses. To uphold the order under review would be virtually to convict the defendant of adultery by judicial decision after a jury, upon conflicting evidence, had pronounced her innocent.
I think the.order appealed from should be reversed.
All concurred, except Goodrich, P. J., who read for affirmance, with whom Woodward, J., concurred.