The action was for a divorce, and at the end of the plaintiff’s case counsel for the defendant moved to dismiss the complaint on the ground that the plaintiff had not proved any act of adultery, which motion was granted, and the plaintiff excepted. Subsequently a. decision was filed which found as a fact “ that the defendant did not, commit any of the acts of adultery alleged or set up in the complaint herein,” and, as a conclusion of law, “ that the plaintiff has not sufficiently proven the allegations of adultery set forth in the complaint, and that, therefore, the defendant is entitled to judgment against the plaintiff dismissing the complaint herein for failure to so-prove the said acts of adultery.” The plaintiff claims that this is to be-treated as a nonsuit, and that the rules applicable to a nonsuit in an action triable before a jury should be applied. The evidence offered by the plaintiff was such as to require the court to consider it and determine whether it was sufficient to sustain the charge of adultery. The main witness called by the plaintiff was a private detective in the employ of what was' called a “ detective bureau.” He testified to facts which, if he was believed, would justify an inference that the defendant was guilty of adultery. His testimony was to some extent corroborated by a companion named Burke. Burke described *377himself as the manager of a furnished room house, and that he was also in the insurance business. He received one dollar for the services that he rendered. Considering the character of the witnesses, however, the court was not bound to believe their testimony. A j ndgment in an action for a divorce should not be granted unless the evidence, after a careful scrutiny, is such as to satisfy the court that the adultery has been committed. (Moller v. Moller, 115 N. Y. 466; Burch v. Burch, 80 App. Div. 57.) When the plaintiff rested the court was required to consider the testimony and whether, uncontradicted, it was sufficient to justify a judgment of divorce. If it was not sufficient, he was not required to take the testimony of the defendant. After the plaintiff’s testimony was before the court, the defendant moved to dismiss the complaint on the ground that the adultery was not proved; and it was this motion that was granted. This involved a determination by the court that the evidence of the plaintiff’s witnesses was not credible, and, therefore, not sufficient to justify a judgment for the plaintiff; and this was followed by the decision which found that the plaintiff had failed to prove the adultery charged.
The record thus shows that the court did pass upon the credibility of the plaintiff’s witnesses, adverse to the plaintiff; and upon this record we are not justified in reversing the determination of the court.
The rules applicable to a nonsuit in a case tried before a jury, when the jury are to determine the facts, are not applicable; as here, it was for the court to determine the facts.
Judgment appealed from affirmed, with costs.
Van Brunt, P. J., O’Brien and McLaughlin, JJ., concurred; Laughlin, J., dissented.